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I
:>
REPORTS OF CASES
DECIDED IN THE
APPELLATE COURTS
OF THE
STATE OF ILLINOIS
VOLUME XXXIX
i
CoNTAlRfNO CA9» IN wmCR OPINIONS WKRB TILED IN THE SrCOND DlSTBIOT
Hi Decbmber, 1890; January, ^at, June, July and August,
1891; IN the Fourth District in February and
June, 1891 ; in the Third District
IN February, 1889, January
AND June, 1891.
REPOBTSD BT
EDWIN BURRITT SMITH
OV the CHICAGO BAR
CHICAGO
CALLAGHAN & COMPzVNY
1893
Entered according to act of CoDgreaa. in the year 1892
Bt Callagham a Company,
In the office of the Librarian of Congress, at Washington, D. 0.
Ster«otyp«d and Printed
by the
Chicago Legal News Company.
OFFICERS OF THE
APPELLATE COURTS OF ILLINOIS
DUBINQ THB TIME OF THESE BEP0BT3.
FIRST DISTRICT.
»
ft
TUOV AS A. UOTikYJ, Pretiding Judge, Chicago.
JOSEPH B. GARY. Judge, Chicago.
ARBA N. WATERMAN. Jt£4flr«, Chicago.
THOMAS Q.McELLIGOrr.Ocr*. Chicago.
SECOND DISTRICT.
CKSUITE, Prestdlrig Judge, --- Champaign.
CLARK W. UPTON. J«d^ - Waukegan.
LYMAN LACEY. Jtt^j/g. Havana.
a C. DUFFY, Cter*. Ottawa.
THIRD DISTRICT.
CHAUNCEY S. CONGER, JVc»fdtn^ Jttd^ ... - . CarmL
GEORGE W. PLEASANTS, /tM?^, Rock Island.
GEORGE W. WALL, Judge, - - - * Da Quoin:
GEORGE W. JONES. Oeri, Springfield.
FOURTH DISTRICT.
J. J.PHILLIPS. i¥nid£n^7ud^ • - Hlllsboro.
OWEN T. REEVES, Jttc^ Bloominglon.
N.W. GREEN, Jiu^e, - - . - Pekln.
JOHN W. BURTON, OerL 3Jt Vernon.
TABLE OF OASES.
A
Allison V. Maley ; 85
Anderson ▼. Thiele 476
Arnold, Freeman v 216
Aschenbrenner, Westgate v. .* 263
Ascfaenbrenoer, Westgate ▼ '. 266
Atlanta Nat Bank, Bevan ▼ 577
Anltman & Go. v. Silns 164
Austin, Westphal V 230
Ayers, aP. &St. L. Ry. Co. v 607
B
Baer v. Knewitz ^ 470
Bailey, Dwelling House Ins. Go. v 488
Bailey v. Ferguson 91
Barton v. Harris 106
Baum, Woodbum v 269
Bermond, Mississippi Valley Man*rr*s Mut. Ins. Go. v 267
Bevan v. Atlanta Nat. Bank 577
Blain v. Desrosiers 50
Block, {^undmacher v 553
Board of Education, Corn ▼ 446
Bradford, O'Leary v 182
Brechon v. Duis 258
Bridges v. People 656
Brockway, Burlington Ins. Co. v 43
Brooks, City of Mt. Vernon v 426
Brotherhood of R. R. Brakemen v. Knowles 47
Brownlee v. Villageof Alexis 135
Bunn, Oberne, Hoeick ft Co. ▼ 122
Burlington Ins. Co. ▼. Brockway 43
Burnett ▼. Snapp 237
Burry, Town of Sheldon y 154
(9)
10 Appellate Courts of Illinois.
J ■ ■ ■ —
O
Caldwell V. Evans 618
Cauipbell V. Ma^rruder 604
Carberry v. People 506
Chailis, Wilson V 227
Chaise y. Kelson 53
Cherry, City of Jacksonville v '. 617
Chicago & A. R. R. Co. v. Mattbews 541
Chicago, B. & Q. R. R. Co. v. Evans 261
Chicago P. & St. L. Ry. Co. v. Ayers 607
Chicago Sash Door and Blind Man'f 'g Co. v. Shaw 260
Chicago Wilmington & Vermillion Coal Co. v. Peterson 1 14
Chrifitison, L. E. & W. R. R. Co. v 4^5
City of Dixon, Morehouse v 1('7
City of East St. Louis. E. St. L. Union Ry. Co. v 898
City of Henry, Yaeger v .' 2l
City of Jacksonville v. Cherry 617
City of Mt. Vernon v. Brooks 426
City of 01 ney V. Riley 4^1
City of Pana v. Humphreys 641
City of Rock Island v. McEniry 218
City of Vandalia v. Ropp 3 4
Collier, Tobin V 478
Common v. People 81
Connecticut Mut. Ins. Co. v. Smith 569
Conroyi j . St. L. & £l> C. B. iC. Co. v.... ...>• t>ol
Consolidated Coal Co. of St. Louis v. Peers 453
Cooper, Herdman v 3o0
Corn v. Board of Education. 446
County of Du Page v. Martin 298
County of McHenry v. Town of Dorr 240
Craft, Mettlerv 193
Crohen v. Ewers and Snyder 84
D
Davis, People v *. 1 62
Davis, Village of Wapella v 692
Davis' V. Nichols 610
Deering & Co. v. Washburn 434
Desrosiers. Blain v 50
Dines v. People 565
Doctor, Rippentrop v 120
Downey, Dwelling House Fns. Co. v 524
Dowse, Wilson v 127
Duis, Brechon v 258
Dunlap, Magers v 618
Dwelling House Ins. Co. v. Bailey 488
Dwelling House Ins. Co. v. Downey 524
Table OF Cases. 11
E
East St. L. AC. R. R. Co., St. L. & C. R. R. Co. v 354
Ea8t St. L., Union Ry. Co. v. City of East St Louis 898
Edwards v. Martin ; 145
Eldridge, flenning v 273
Evans. Caldwell v 613
Evans, C. B. & Q. R. R. Co. v 261
Ewers and Snyder, Crohen v 34
F
Fellows, St. Louis Bridflfe Co. v 456
Freeman v. Arnold 216
Foval V. Foval 644
Ferguson, Bailey v 91
G
Gable. Goldsbrough v 278
German Ins. Co. v. Miller 683
Gillettv. Ins. Co. of North America 284
Goldsbrough v. Gable 278
Gould V. Warne 279
Grape Creek Coal Co. v. Spellman 680
H
Hamilton, McCrory v 490
Ham V. Peery 841
Hanks v. People 223
Harris, Barton ▼ 106
Hart, Pheniz Ins. Co. v 517
Hauptmann, Robinson Floating Museum Co. v 441
Hawkins, St. L. A T. IL R. R. Co. v 406
Headlee, Piper v 93
Henning v. Eldridge 273
Herdman v. Cooper , 3:30
Herman. P. A P. Union Ry. Co. v 287
Hess V. Reiser 493
Hewitt V. itexter&Co 585
Hezter & Co., Hewitt v 5^5
Huber v. Schmacht 229
Humphreys, City of Pana 641
Hodge, Kerrv 546
Hossack V. Moody 17
Hoyle, Truesdale Mfg. Co. v 532
I
Illinois C, R.R.CO. v. Light 530
Illinois C. R. R. Co. v. Slater 69
Insurance Co. of North America. Gillett v 284
International Bank of Chicago v. Van Kirk -^
12 Appellate Courts op Illinois.
J
Jamison, Martin ▼ 248
Johnson v. Stephenson 88
Johnson v. Stinger. 180
Johns V. McQuigg . . .' 609
K
Keiser, Hess v 493
Kerr v. Hodge 546
Knewitz, Baer v 470
Knowles, Brotherhood of R. R. Brakemen v 47
L
L.E. &W. R. R. C5o. V. Christieon 496
L. E. & W. R. R. Co. V. Wills .* 649
Light, I. C. R. R. Co. v , 630
Lillard, Town of Bloomington v 616
Litchfield Car & Machine Co. v. Romine % 642
Lnsk V. Parsons «^.80
Luthy V. Waterbury 317
M
Magers v. Dunlap 618
Magnider, Campbell v 604
Maley, Allison v 85
Martin, County of DuPage v 298
/ Martin, Edwards v 145
Martin v. Jamison 248
Matthews. C. & A. R. R. Co. v 641
McCrory v. Hamilton ^ 490
McDole V. McDole ' 274
McEniry, City of Rock Island v 218
McQillis V. Willis 311
McQuifrg* Johns y 609
Mealand, Van Nostrand v 178
Mettler v. Craft 193
Metzv. Wood 131
Meyerott, Osborne & Co. v 425
Miller, German Ins. Co. v 633
Miller, St. Louis Bridge Co. v 366
Miller v. Rollen 350
Milwaukee Harvester Co., Windils v 521
M inter v. People 438
Mississippi Valley Manf rs Mut. Ins. Co. v. Bermond 267
Moody, Hossack v 17
Morehouse v. City of Dixon 107
Morris, Steyer v 582
Muddy Valley Mining & Manf 'g Co. v. Phillips 376
Mutual Accident Ass*n of the Northwest v. Tuggle 509
Table of Gases. 13
Nealon v. People 481
Nelson, Chase v 58
New Hoijie Life Ass'n of Illinois v. Owen 413
Nichols, Davis V 610
Northrap v. Smothers « 588
Nuernberger v. Yon Der Heidt '. 404
o
Oberne, Hoeick & Co. v. Bunn 122
0.. I. & W. Ry. Co. V. People 473
0. & M. Ry. Co. V. Ramey 409
O'Leary v. Bradford 182
Osborne & Co. v. Meyerott 425
Owen, New Home Life A^s'n of Illinois v 418
p
Parmenter, Piano Man*fg Co. ▼ 270
Parsons, Lnsk ▼ 880
Peterson; Chicago, Wilmington & Vermillion Coal Co. v 114
Peers, Consolidated Coal Co. of St. Louis v 458
Peery, Ham v 341
People. Bridges v , 656
People, Carberry v 506
People V. Davis 162
People, Dines v '666
People, Hanks v • 223
People, Minter v 438
People, Nealon v 481
People, Common v 31
People. 0. L A W. Ry. Co. v 473
People, Smith v 238
P. &P. UnionRy. Co. v. Herman 287
Peters, Schreiner v 309
Phenix Ins. Co. v. Hart 517
Phillips, Muddy Valley Mining & Manf 'g Co. v 876
Piper V. Headlee v 93
Pitts, Wilderman V 416
Piano Man7g Co. v. Parmenter 270
President, etc., of Rushville, Town of Rushville v 503
Purcell.v. Town of Bear Creek 499
Pusey, Timmerman y 523
R
Ramey,0.&M. Ry. Co. v 409
Razor v. Rszor 527
Redden, Ward v 643
Riley, City of Olney v 401
Rippentrop v. Doctor 120
14 Appellate Courts of Illinois.
Robinson Floating Museum Co. v. Hauptmann 441
Rockford Ins. Co. v. Wright 574
RoUen, Miller v 850
Romine, Litchfield Car & Machine Co. v 642
Ropp, City of Vandalia v S44
Rowland v. Swope 514
Russell, St. L. A. &T. H. R. R. Co. V 443
Russell y. Thomas 158
s •
St. L. A. &T. H. R. R. Co; v. Hawkins 406
St. L. A.&T.H. R. R. Co. v. Russell 443
St. L. A. &T. H. R. R. Co. v. Walker 888
St. L. & C. R. R. Co* V. E. St. L. & C. R. R. Co •• 854
St. L. Nat. Stock Yards V. Tiblier 422
St Louis Bridge Co. v. Fellows 456
St. Louis Bridge Co. v. Miller 866
Sample, Wilmerton v 60
Sauerbier v. Union Central Life Ins. Co 620
Schmacht» Huber v 229
Schreiner v. Peters ^09
Shafer, Steel v 185
Shaw, Chicago Sash Door and Blind Manf g Co. v 260
Sheets V. Wetsel 600
Silvis, Aultman & Co. v 164
Slater, Illinois Central Ry. Co. v 69
Smothers, Northrup v '. 688
Smith, Conn. Mut. Ins. Co. v 669
Smith V. People ' 238
Snapp, Burnett v 237
Speer, Wabash R. R. Co. v 699
Spellman, Grape Creek Coal Co. v 630
Steel V. Shafer 185
Stephenson, Johnson v 88
Steyer v. Morris 882
Stinger, Johnson v 180
Sundmacher v. Block 553
Swope, Rowland v 514
T
Thiele, Anderson v 476
Thomas, Russell V 158
Tiblier, St. Louis Nat. Stock Yards v 422
Timmerman v. Pusey 623
Tobin V. Collier 478
Toledo, St. L. & K. C. R. R. Co. v. Conroy 851
Town of Bear Creek, Purcell v 499
Town of Bloomington v. Lillard 616
Table of Cases. 15
Town of Dorr, County of McHenry v 240
Town of Rushville y. President, etc., of Rushville 503
Town of Sheldon ▼. Burry 154
Truesdale Mfg. Co. v. Hoyle 632
Tugrgle, Mut. Accident Ass^n of the Northwest v 509
Turner, Wilbur V 626
TJ
Union Central Life Ins. Co., Sanerbier v 620
V
Van Kirk, International Bank of Chic^pro v 23
Van Nostrand v. Mealand 178
Vetten t. Wallace 890
Village of Alexis, Brownlee v , 135
Village of Wapella V. Davis 592
Von DerHeidt, Nuernberger v 404
w
WabashR. R. Co. v. Speer 599
Walker, St L., A. T. H. R. R. Co. v 388
Wallace, Vetten v 390
Wardv. Redden 643
Warne, Gould v 279
Washburn, Deering &Co. v 434
Waterbury, Luthy v * 317
Westgate V. Aschenbrenner 263
Westgate v. Aschenbrenner 266
Westphal v. Austin 230
Wetsel , Sheets v 600
Wilber V. Turner 526
Wilderman v. Pitts 416
Wills. L. S. & W. Ry. Co. v 649
Willis, McGillis V 311
Wilmerton v. Sample 60
Wilson V. Challis 227
Wilson T. Dowse 127
Windils V. Milwaukee Harvester Co 521
Woodburn v. Bau m 269
Wood, Metzv 131
Wooley V. Yamell 695
Wright, Rockf ord Ins. Co. V .' 674
Y
Taeger ▼. City of Henry 21
rarnell, Wooley v 695
OASES
EC THB
APPELLATE COURTS OF ILLINOIS.
Second District — May Term, 1890.
Henry L. Hossack
V.
Moses Y. Moody.
Negotiable Instruments — Note — Payment — Instrument Comprising both
Receipt and Contract — Parol Evidence'
A written instrument may be both a receipt and a contract, in which
case that portion operative as a receipt may be contradicted or explained
like any other receipt
[Opinion filed December 8, 1890.]
Appeal from the Connty Court of La Salle County; the
Hon. Fkank p. Snydek, Judge, presiding.
Mr. Frank G. Allen, for appellant.
Messrs. Carey & Teaincr, for appellee.
Upton, J. This was a suit in assumpsit originally com-
menced before a justice of the peace in La Salle County, upon
a promissory note of the following tenor, viz.:
" Ottawa, Dec. 7th, 1880.
" For value received I promise to pay to the order of II.
Toi. XXXIX2 (1*)
1^
18 Appellate Courts of Illinois.
Vol. 39.] Hossack r. Moody.
L. Hossack one hundred dollars with interest at eight per cent
per annum.
Signed, «M. G. Moody."
Upon trial before the justice of the peace the appellee,
defendant below, had judgment, and appellant took an appeal
to the County Court of La Salle County, in which latter
court a trial was had before that court and a jury, resulting in
a verdict for appellee of " no cj^use of action," upon which,
after overruling a motion for a new trial, judgment Mas
rendered, and a further appeal was taken to this court, and
the record is now before us.
Appellant's counsel submits thpe propositions, upon which
are based the grounds for reversing thejudgment of the court
below. 1st. The trial court erred in allowing parol explana-
tion of a receipt in writing because the receipt embodied a
contract in the same writing. 2d. The trial court erred in
giving the jury appellee's instruction No. 1. 3d. The verdict
is against the weight of the evidence.
It appears that appellant and appellee, for some years prior
to the date of the note in suit, had business relations and
dealings together, and some joint interest in a feed yard in
Ottawa, La Salle county. Appellee contends that in July,
1880, he gave appellant his promissory note for $90.92 on
interest; that subsequent thereto, and on the 7th of Decem-
ber, 1880, a settlement was had between the parties, of their
business affairs to that date, including the note of $90.92 and
interest thereon from its date until that time, and certain
accounts on book, and that at that time and settlement the
note in suit was executed, which included the $90.92 note of
July, 1880, and interest thereon, and the balance due on
account between the parties, and the $90.92 note was by
agreement of the parties paid by including the same in the
note in suit, and that some time thereafter, the note in suit
was in fa<»t paid to appellant in full, but that at the time of
such payment the note could not be found, or was supposed
to be lost, and neither the note for $90.92 nor the $100 note
substituted therefor, were either of them delivered to appellee;
that some time in 1888 appellant and appellee, being then
Second District — May TepwM, 1890. 19
Hossack V. Moody.
about to sell and convey their interest in the feed yard, had a
final settlement to that date, and appellee refused to convey
his interest in the feed yard unless the appellant would give
appellee a receipt showing the payment of the note now in
suit It is conceded that the note for $90.92 was included in
another not« given by appellee to appellajit, but whether
included in the note in suit, or in another, was a question
sharply controverted on the trial below. In order to comply
with appellee's wishes, and to effect the sale of the feed yard,
the appellant and appellee stated the matter to one Thos. E.
Mackinlay, an attorney at law, who at their request, drew
9 receipt, which was executed by appellant and Medora
Ho&gack, his wife, and delivered to appellee, of the following
tenor: "Received of Moses T. Moody, payment of a certain
note of ninety dollars and ninety-two cents, which has been
lost or mislaid, and we severally and jointly agree that if it
shall come into the possession of any third party, we will
defend said Moody against any suit brought for its collection
in the hands of such third party," and bore date on or about
July — , 1888. This note of $90.92 was spoken of by both
parties, in their controversies, as the $100 note. Appellant,
in his evidence, admits that this $90.92 was paid to him, by
being included in another note given by appellee to him, but
he claims that it was included in a note of $114.38, dated
December 8, 1880, and not in the note in suit, which last
named note appellant contends was given for money loaned,
which 18 denied by appellee.
From the foregoing statement it will be seen that the ques-
tions of fact between the parties were sharply defined in the
courts below, and tlie testimony sharply conflicting and
irreconcilable in reference thereto. ^
First. Was the paper introduced in evidence (by parol
evidence of its contents, the original having been lost or mis-
laid) in the nature of a receipt, so that it was subject to ex-
planation by parol ? It is conceded that a mere receipt is
always subject to explanation or contradiction even by parol,
but the rule is otherwise as to written agreements or contracts
generally. In the case at bar, the paper writing introduced
20 Appellate Courts of Illinois.
Vol. 39.] Hossack v. Moody.
was both a receipt and an agreement, or contract for indem-
nity. We perceive no reason why a written instrument may
not be both a receipt and an agreement or contract, in which
case that portion operative only as a receipt might be ex-
plained or contradicted, like any other receipt; but not so as
to that part which contains the contract or agreement of the
parties ; that can not be so contradicted. This we understand
to be the view taken by the Supreme Court in McCloskey v.
McCormick et ah, 37 111. 72. There the question was, whether
the bill of sale ofiFered in evidence was in the natui'e of a re-
ceipt, and subject to explanation, etc. The court say, " In that
respect it speaks its own language." In the Ciise at bar there
is no attempt to enforce the agreement of indemnity, but
simply to show the payment of the note to appellant, the orig-
inal payee thereof. As to that issue, it was simply a receipt
Second. The instruction given for appellee, No. 1, is claimed
to be erroneous for tlie reason, as is said, that it assumes '*that
the receipt was given in settlement of all outstanding notes
between the parties," when in fact there was no evidence of
that character in the record. We do not think the instruc-
tion obnoxious to the criticism made by counsel. Moody, the
appellee, testified as sliown by the abstract that " the settle-
ment upon which the receipt in question was given " was
intended to cover the note in suit and square up all claims
letween appellant and apjyellee.'^^ This, if true, would of
course include all outstanding notes held by Hossack against
Moody, as fully as stated in the instruction. The residue of
the instruction is as to the question of the admissibility of
the receipt in evidence at all, for the reason before stated
and which objection we have shown is not well taken. There
was no error in this instruction apparent to us.
Tliird. We have carefully examined the evidence in this
case, and while it is sharply conflicting, we are not able to
say the jury were not warranted therefrom in finding the
verdict rendered in the case, or that the verdict is not fully
justified by the evidence.
There being no sufficient error in this record of a revers-
able character appearing to us, the judgment of the court
below must be affirmed. Judgment affirmed. .
Second District — May Term, 1890. 21
Yaeger v. City of Henry.
Henry Yaeger
V.
The City of Henry.
Jurisdiction — Absence of Bill of Exceptions — Presumptions in Favor
of Judgment.
1. Where a party appears and submits himf^elf to the jurisdiction of
the court it is of no iniportiince wliether the summons was void or not, or
whether in fact there was any process at all.
2. In the absence of a bill of exceptions an appellate court will pre-
sume that every fact necessary to brinj? the case within the jurisdiction
of the court and establish a cause of action was proven on the trial.
[Opinion filed December 8, 1890.]
Appeal from the Circuit Court of Marshall County; the
Hon. T. M. Shaw, Judge, presiding.
Mr. Fred S. Potter, for appellant.
Mr. T. F. Clover, for appellee.
Upton, J. In this case upon motion of counsel for appellee,
the bill of exceptions filed herein was stricken from the
record. Appellant now seeks to reverse the judgment below
for alleged error manifest upon the face of the record.
Those errors are :
1st. That the trial court did not acquire jurisdiction of the
person of the defendant.
2d. The court erred in trying the cause and entering
judgment therein, without issue being joined.
3d. The court erred in trying the case without a jury.
4th. The court erred in trying the case at all.
The record recites that the appellant came by his attorney, and
agreed to, and did, submit his case to the court below for trial
22 Appellate Courts of Illinois.
Voii. 39.] Yaeger v. City of Henry.
without a jury. The record further shows that the case was in
fact tried by the court without a jury. It recites that the par-
ties to the suit "came by their respective counsel, and the
court having heard the evidence and arojuments of counsel,
found the defendant guilty," etc. The Supreme Court held
in Baldwin v. Murphy, 82 111. 485, when a party appears
and submits himself to the jurisdiction of the court, it is a
matter of no consequence whether the summons was void
or not, or even whether there was in fact any process at all
It is a rule of general application that in the absence of a bill
of exception showing all the evidence in the case, it will be
presumed in support of the judgment that there was suffi-
cient evidence before this court to warrant it. Wilson v.
McDowell, 65 111. 522; Treischel v. McGill, 28 111. App. 78.
It was held, in the absence of a bill of exceptions preserving the
evidence, the Supreme (or Appellate) Court will presume that
«very fact necessary to bring the case within the jurisdiction
of the court and establish a cause of axrtion^ was proven, and
established on the trial. See Tng Boat E. P. Dorr v. Waldron,
62 111. 222; Goodrich v. City of Minonk,62 111. 122; Davis v.
Taylor, 41 111. 407. In Kich v. Hathaway, 18 111. 548, it
was held, that all intendments will be in favor of the legality
of the proceedings in courts of general jurisdiction, where it
depends upon matter of fact, unless the existence of such facts
is denied and shown by bill of exceptions. To the same
efiFect 18 Graham v. Dixon, 3 Scam. 115. It is apparent
therefrom, there being no bill of exceptions, under the legal
presumptions attaching to judgments of the character before
us, we must pi'esume in favor of appellee, and the proper and
legal action of the trial court and the judgment below must
be affii'med.
Judgment affirmed.
Second District — May Term, 1890. 23
Internationai Bank of Chicago v. Vankirk.
The International Bank of Chicago et al,
Henry C. Vankirk et al,
Oatnhling Ttansaetion — Paper Tainted Thereby Void — Renewal and
Transfer ImmaieriaU
[Inder the laws of this State all manner of gambling^ obligations are void
in the hands of everybody, and such obligations can never be made valid by
any renewals or transfers to innocent purchasers. Therefore a trust deed,
given to secure a note given in payment of a gambling debt, though once
renewed, and transferred to the hands of an innocent purchaser, is void«
[Opinion filed December 8, 1890.]
Appeal from the Circuit Court of Kankakee Countj; the
Hon. N. J. PiLSBURY, Judge, pi^esiding.
Messrs. D. H. Paddock and Bottqm & Swaetz, for appel-
lants.
The court below held that the said trust deed is tainted with
illegality, and therefore void. In this wo think the court
erred.
The illegality of a thing or transaction consists in that it is
either malum in se or malum prohibitum^ and any illegality
which may attach to dealing in ''options" or "future deliveries"
of a commodity in the marts of trade does not arise from the
fact of such transactions being mala-in se and contrary to the
common law of the land, but that, for reasons of public policy,
the sovereignty of the State has seen fit to forbid them and
make them mala prohibita. These considerations are pre-
sented for the pui*pose of urging a strict construction of any
prohibitory statutes which may apply to dealings of this char-
acter, and that they be not enlarged to cover facts not clearly
within them.
The question as presented by the record in this case has
24 Appellate Courts of Illinois.
Vol. 39.] International Bank of Chicago v. Vankirk.
never been before the courts of appellate jurisdiction in this
State before, and little assistance can be had from %tare
decisu.
The position taken by appellants is that whatever may have
been the status of the original notes on account of illegal con-
sideration, that such illegality was purged and did not attach
to the second transaction when the later notes and trust deed
were made by the defendant at the instance of the Inter-
national Bank, an innocent holder for value.
Here was a new contract entered into by Yankirk with the
bank, in which Yankirk executed new notes, and also a trust
deed to secure them, in which he promises to pay the amount
of said notes, in consideration of the old notes being canceled
and delivered up, and in consideration of the sum the bank had
paid for the notes. True, the second notes were made payable
to A. 0. Ilelmholz, but so tliey might have been made payable,
if the parties saw lit, to any third person. The transaction was
entirely and exclusively between the International Bank and
Yankirk, and a good and valuable consideration moved be-
tween them. Yankirk wanted those old notes and that old
matter settled ; the bjtnk wanted security for a sum of money
w^hich was rightfully due it, and each got what it wanted.
There was no illegality in that transaction. Of course, if wo
go back of this to the first notes, illegality may be found, but
the law considers proximate and not remote causes. Chitty
on Contracts, 730, says: "The test as to whether a demand
connected with an illegal transaction be capable of bping
enforced at law, is whether the plaintiff must rely on such
transaction in order to establish his case."
The case of Calvert v. Williams, a North Carolina case,
is, we think, an authority in point, although in that case the
second note was made payable to the assignee of the first
note. There the court says: " In our case the maker exe-
cuted the second note to Calvert, who was the indorsee, for
valuable consideration and without notice. This second note
was given to secure the price paid by Calvert for tlie first
note, and not to secure the payment of the money which
Christmas had won; for the purpose of making it, must be
\
Second District — May Term, 1890. 25
International Bank of Chicago v. Vankirk.
referred to the proximate and not the remote cause. Tlio
consideration, therefore, is not tainted by the illegah'ty which
vitiated the first note. His honor erred in failing to note the
distinction." Calvert v. Williams, 64 N. C. 168.
A strict construction of the statute upon wliich appellees
rest their defense will lead, we think, to the conclusion that
the statute is not sufficiently broad to include within it the
facts of this case. That our Supreme Court is disposed to
construe this statute strictly is shown, we think, by the case
of West V. Carter, 129 111. 249, wliich was a case in which
the bondsman on an appeal bond filed his bill in chancery
and sought to have the bond canceled and the original judg-
ment declared void on the ground of illegality, and that the
defendant, the appellant in the case above, be enjoined from
taking judgment on the bond; but the court hold that
appellee, the complainant below, had no such interest in the
judgment as entitled him to the relief asked under Sec. 131
Crim. Code, It. S.
Furthermore, this trust deed was made with the full under-
standing and consent of the defendant with the complainants
for the very purposes which are now souglit to be enforced,
and on the principle laid down in the case of McTntire v.
Yates, 103 III 497, he is estopped from setting up any equities
existing between himself and Ilelmholz.
Messrs. James N- Orr, B. F. Gray and 11. K. Wheeler,
for appellees.
The statute expressly provides that all notes or other evi-
dence of indebtedness, contracts, agreements, mortgages or
other securities given, granted or entered into, " w^here the
whole or any part of the consideration thereof " shall be for
money, ])roperty or other valuable thing, won at gambling,
or which grows out of a gambling contract, are void. Sees.
178, 179 and 180, Chap. 38, Revised Statutes.
It is provided, further, that all judgments, mortgage?,
assurances, bonds, notes, bills, specialties, promises, covenants,
ugreemjiits and other conveyances, etc., may be set aside and
y
26 Appellate Courts of Illinois.
Vol. 39.] International Bank of Chicago v. Vankirk.
vacated by a bill of equity filed for that purpose by the per-
son so granting or giving the same, or by any creditor, heir,
devisee, purchaser or other person* Section 1S3, Chap. 38,
Ke vised Statutes.
These complainants are seeking to enforce a mortgage, and
the rule is so well settled that the assignee of a mortgage
takes it subject to all equities between the parties to it as to
need no citation of authorities. The courts of this State have
held that the innocent holder of a note or draft, the consider-
ation of which was money growing out of a gambling trans-
action, can not recover on the same. Pearce v. Foote, 113
III. 228; Chapin et al. v. Dake, 57 111. 296; Gilbert v.
Holmes, 64111. 548.
The statutes of this State have declared that all notes and
mortgages^ or other evidences of indebtedness, growing out
of these transactions, are not merely voidable but are void
and of no effect, and it is difficult to see upon what principle
the renewal of a void note, one which had no standing of any
kind in law, could make it a valid, legal obligation.
The statute also provides that " No assignment of any bill,
note, bond, covenant, agreement, judgment, mortgage, or
other security, on conveyance as aforesaid, shall in any
manner affect the defense of the person giving, granting,
drawing, entering note or executing the same, or the remedies
of any person interested therein." Sec. 184, Chap. 38, R. S.
It is next urged that this was a " new contract," entered
into by Yankirk with the bank, in which Yankirk executed
new notes and also a trust deed to secure them, in wliich he
promised to execute new notes in consideration of the old
notes being delivered up; and it is insisted in argument
that there was no illegality in the transaction. As before
stated, we diallenge this statement of the case. The bank
was not a party to this contract. The maker of the notes was
Henry C. Yankirk; the payee of the notes was A. C. Helm-
holz; and this contract was therefore between the maker of
the note and the payee. The bank was not even privy to the
contract. It was not known in the transaction. But assum-
ing that the bank was a party to this contract, it bein^ con-
Second District— May Term, 1890. 27
International Bank of Chicago v. Vaakirk.
ceded that the consideration for the original notes grow out
of a gambling transaction, and that these notes were void,
being contrary to law, wo insist that the first contract being
void, the renewal of it did not change its legal status;
that such is the elementary rule of law. "Where the con-
sideration is altogether illegal it is sulRcient to sustain a
promise and the agreement is wholly void. This is so equally
whether the law which is violated be statute law or common
law." Parsons on Contracts, Yol. 1, page 458, fifth edition.
"Illegality of a consideration avoids a mortgage whether it
consists of violation of a common law or of a statute." Jones
on Mortgages, Sec. 617.
"As a general rule, where the undertaking upon, which the
plaintiff relied was either upon an unlawful consideration or
to do an unlawful act, the contract is void ; and this whether the
contract be illegal as being against the rules of the common
law or the express provisions or general policy of any particular
statute." Munsell v. Temple, 3 Gilman, 93; Wheeler v.
Russell, 17 Mass. 237.
We therefore submit that as to the question of making the
contract, it being on its face between Helmlu)lz and Yankirk,
that this court will presume that they were the actual
parties to it.
Second. That the evidence of Yankirk is that they were
the actual parties to the contract, and he is corroborated by
the document itself.
The evidence of Schmid is that the contract was taken in
the name of Holmholz for the purpose of securing his liability
as an indorser, when the bank already had his liability as an
original debtor, and it must, be evident that this was a mere
pretext and is not supported by any circumstances connected
with tlie case.
As to the indorsement being void in the hands of an
innocent holder, see Commercial National Bank v. Spaids,
8 111. App. 493.
Tenny v. Foote, 4 111. App. 594, was a board of trade
case, and is, we think, directly in point in this case. The
Appellate Court, page 601, says: "It is immaterial whether
28 Appellate Courts of Illinois.
Vol. 39.] International Bunk of Chicago v. Vankirk*
plaintiffs be }>ona fide holders of the note or not, if the con-
tract between Hooker & Co. and Foote was a gambling trans-
action and within the statute against gambling, because the
statute itself renders void all contracts, notes, bills or other
securities, wliether the whole or any part of the consideration
arises out of a gambling transaction."
Section 136, Criminal Code, declares '*Tliat no assignment
shall in any manner aflfect the defense of the person making
such note or bill." Chapin v. Dake, 57 III. 296, before cited.
Such a thing as making valid by giving the new notes and
trust deed would be an avoidance of the statute, and we con-
sider it wholly untenable.
Finally. Even though the court should believe that the
contract of renewal of tlie notes was between Vankirk and the
International Bank, the original contract being void, that it is
an insufficient consideration upon which to base a new con-
tract, and that the bank gets no greater right under the pecul-
iar provisions of our statute than did Hehnholz.
C. B. Smith, P. J. This was a bill in chancery brought by
appellant against appellees to foreclose a certain trust deed,
given by Henry C. Vankirk to Godfrey Schraid as trustee,
to secure two notes, dated October 30, 1884, each for the sum
of $1,342, due respectively in nine and eighteen months after
date, with six per cent interest. The notes were payable to
the order of A. C. Ilelmholz and by him indorsed to tlie
International Bank of Chicago. These notes were renewals
of two notes, dated May 1, 1884, one for $1,300, and one for
the sum of $1,306.25, both of which were also payable to A.
C. Ilelmholz and executed by Henry C. Vankirk. These first
notes were assigned before maturity to Michael Schweisthal
for a valuable consideration and as collateral security to the
bank. Not being paid at maturity the notes first given were
renewed and were executed to the same payees as the first
notes, and signed by the same maker, Henry C. Vankirk, and
before the maturity of these renewed notes they were
assigned by Helmholz to tlie bank as collateral security and
for a valuable consideration and without any actual notice to
Second District — May Term, 1890. 29
International Bank of Chicago v. Yankirk.
the bank of any defense to the notes. The mortgage now
sought to be foreclosed was executed to secure these two
renewed notes of $1,342 each.
The original and amended bills were answered. The answer
set out that the original consideration for which the two first
notes were given, was for. certain losses sustained by Vankirk
on certain option deals in grain in Chicago, growing out of
gambling contracts m grain, on the Board of Trade, and that
the option deals and gambh'ng contracts were had and carried
on with A. 0. Helmholz, and that the sum of these two notes
represented the amount of loss sustained by Vankirk in his
dealings with said Helmholz, and that the original notes and
their renewals and the trust deed given to secure them were
all to secure the payment of the original amount lost by Van-
kirk in his option deals and gambling contracts with Helm-
liolz. In addition to the answer Yankirk also filed a cross-
bill, giving a history of the transaction as set up in the original
and amended bills, and the answers thereto, and charging that
the consideration of said notes and the ti'ust deed was fraud-
ulent and void, and the consideration as stated in the answer,
and alleged that the trust deed was a cloud on his title, and
asked to have it canceled. Issues were joined and the cause
heard by the court, and decree finding the facts to be as set up
in the answer and cross-bill; and a decree that the original
and amended bills be dismissed, and that the relief asked for
in the cross-bill be granted, and the trust deed and notes can-
celed. From that decree this a{)peal is prosecuted.
The proof below established the fact that these notes rep-
resented the losses of Vankirk, growing out of his gambling
transactions on the Board of Trade with A. C. Helmholz.
Indeed, we do not understand appellant as seriously denying
that the original consideration of these notes was illegal,
fraudulent and void, as being the product of gambling in grain
on the Board of Trade. The contention of appellant is that
conceding the notes to have been tainted originally with an
illegal consideration, still the renewal of the same to the same
payee, and by him immediately indorsed to the bank for a
valuable consideration, and without notice of the illegal con-
30 Appellate Courts of Illinois.
Vol. 39.] International Bank of Chicago v. Vankirk.
Bideration, would enable the bank to hold them as an inno-
cent purchaser free from the taint of the original consideration.
"We do not concur with appellant in this view of the law.
"We think the renewal of these notes gave them no new merit,
nor in any manner whatever removed or changed the illegal
consideration of the first notes. The consideration for the
new notes was the same as in the old ones. Giving^ the tnni
deed to secure tliem did not change the illegal character of
the consideration. It is a familiar rule of law that an assignee
of a mortgage or trnst deed takes it subject to all the equities
of the mortgagor, and the assignee of the mortgagee can not
occupy any better position toward the mortgaged property
than the mortgagee himself. It is also well settled that there
can be no innocent holders of promissory notes or mortgages,
where it appears that the consideration of snch notes and
mortgages was the result or grew out of a gambling transac-
tion. All such contracts are void in the hands of all persons;
Pearce v. Foote, 113 111. 228; Chapin v. Dake, 57 111. 296.
Tlie Bank v. Spaids, 8 111. App. 493.
Sections 178, 179 and 180, Chap. 38, Rev. Stat. (Starr
& Curtis), declare all manner of gambling contracts, includ-
ing those in grain, to be absolutely null and void. Sec.
183, Chap. 38, provides that any and all such contracts, even
if reduced to judgments, may be set aside and vacated in a
court of equity; and section 184 of the same act provides
that no assignment of any such note, mortgage, judgment or
other form of contract, shall defeat or affect the defense of
any person so having executed or delivered any of said gam-
blins: contracts. It will thus be seen that under the broad
and sweeping language of our statute, all manner of gambling
obligations are absolutely void in the hands of everybody,
aftd that snch obligations can never be made valid and legal
by any possible changes to which they may be subjected.
The original taint of illegality follows them into the hands
of all holders, and adheres to them and poisons them in what-
ever form they may take. The judgment of outlawry is
against them in all hands and in all forms. It being clearly
proven in this case, and not denied, that the original consid-
Second District — May Term, 1890. 31
Common v. The People.
eration of these notes was the product of gamblinn^ in grain
and representing losses in option deals, it therefore becomes
a matter of no importance how or when this bank became
possessed of these notes and this trust deed, nor what tliej
paid for them. We therefore think the decree of the Circuit
Court was right, and the decree will be aflSrmed.
Decree affirmed.
James Common
V.
The People of the State of Illinois.
Bastardy — Evidence — Immalena I Error.
1. In a prosecution for bastardy, where the evidence was conflicting:, it
is held: That the verdict was sufficiently supported by the evidence.
2. Evidence to show that the prosecuting witness testified differently
upon a former trial is competent in such cases, but where it appears that
the exclusion of such testimony probably did the defendant no harm, the
discrepancy attempted to be shown being immaterial, the court may refuse
to reverse the judgment.
[Opinion filed December 8, 1890.]
Appeal from the Circuit Court of Iroquois County; the
Hon. Alfred Sample, Judge, presiding.
Mr. C. W. Eaymond, for appellant.
Mr. A. F. GooDYEAB, State's Attorney, for appellees.
C. B. Smith, P. J. This was a prosecution for bastardy on
complaint of Carrie Winkle. On the trial below the defend-
ant was convicted and he now appeals to this court and seeks
99 31
137s eor
32 Appellate Ck)URTS of Illinois.
Vol. J -9] Common v. The People.
a reversal of the judgment. The case was here before us at
a former term on the appeal of appellant, and is reported in
Common v. The People ex rel., etc., 28 111. App. 230. It
was then reversed because a majority of this court was of
opinion the court erred in refusing to continue the case on
motion of appellant. The case was remanded and retried
again, resulting in appellant's conviction. The case has now
been tried three times before three juries, once in the County
Court and twice in the Circuit Court, all resulting alike in the
conviction of the defendant. Two grounds only are urged for
a reversal of this judgment :
FirsL That the verdict is contrary to the evidence.
Second. That the court erred in refusing the defendant
the right to call witnesses to show the prosecutrix had sworn
differently upon a former trial from what she testified to in
this trial.
With reference to the first objection it is apparent, from a
careful reading of the testimony, that there is an irreconcilable
conflict in it. The prosecutrix testifies positively that the
child was begotten at the house of one Brumback, where both
she and the defendant were, and had been working for some
time together as hired servants, on the Slst day of May, 1886,
and that the defendant, on the early morning of that day came
to her room and had sexual intercourse with her, and that
from such intercourse she became pregnant. Slie also testi-
fied that her child was born on the 27th day of February, 1887,
and that the defendant was its father. The defendant as
positively denies that he has ever had sexual intercourse
with the prosecutrix, and denied that he was the father of her
child. Other testimonv was offered on both sides tending to
support the parties for whom the witness was called. We
have carefully read the evidence and are satisfied the
jury was justified in finding the defendant guilty, if they
believe the plaintiff and her witnesses. There is ample evi-
dence in this record to sustain the judgment if the witnesses
for the prosecution were believed by the jury. Either the
prosecuting witness, Carrie Winkle, or the defendant, James
Common, testified deliberatelj^, wilfully and falsely regard-
Second District — May Term, 1890. 33
Common v. The People.
ing the paternity of the child. There is no possibility of a
mistake upon that question. The jury heard and saw them
botli,and they were much better able to determine than we are
whether **an artful and designing woman " was trying to over-
reach and convict an innocent, guileless man, or wliether an
innocent, unlettered country girl was the victim of the lust
and lechery of the defendant, and despoiled of her virtue and
character. The defendant has sworn three times that he liad
no sexual intercourse with Carrie Winkle. Three juries
have lieard him and his witnesses, and they have refused to
believe him, and these three juries have heard Carrie Winkle
tell the simple, short story of her seduction and ruin by this
defendant, and they have all believed her. It is urged with
great earnestness and zeal upon us, that the unsupported
oath of a "designing woman" is not sufficient to justify con-
viction of a man for bastardy in cases where he denies it.
Whether this is so must always be a question of fact for the
jury and not a question of law for the court. Acts of seduc-
tion are generally accomplished in secret and under cover of
night, and it is absurd to say that no woman could convict a
man of bastardy who could not call some witness to support
her, and that upon her failure to do so the denial of her
seduction would necessarily require his acquittal.
As' to the second objection urged we are of opinion
that the evidence offered by appellant and refused by
the court was admissible under the authority of McCoy v.
The People, 71 111. 111. On the first trial in the County
Court the prosecutrix had testified that she had been up about
half an hour before the defendant came to her room, and on
the present trial she testified that she had been up about an
lionr and a half before the defendant came to her room on
the morning when she claims the sexual act occurred. The
defendant offered to call witnesses to prove what her testi-
mony on that point was on the lirst trial, but the court
rejected the testimony. Even if this evidence had been
allowed, the contradiction would have been of so unimportant
a character, and upon a point so immaterial, that it is hardly
possible that it would have changed the verdict She did not
YoL. XXXIX 8
I
39 34;
43 esi
34 Appellate Courts of Illinois.
Vol. 39.] Crohen v. Ewers.
on either occasion pretend to be able to fix the exact hour
defendant came to her room, or the exact length of time she
had been np before he came to her room, nor was the exact
time at all material. The material question was whetlier the
defendant was there at all, and not as to the precise hour. So
that even if it was error to refuse the evidence oflFered, it
was such an error as could do the defendant no harm. Com-
plaint is also made in the reply brief and argument of appel-
lant that the court erred in refusing to give the last five instruc-
tions asked by appellant. The court gave for tlie defendant
fifteen elaborate instructions covering every phase of the law
applicable to the defendant's theory of the case, or which
could be fairly asked by him. Those refused were either
duplications of what had been given or were clearly wrong,
and all were properly refused. The judgment is affirmed.
Judgment affirmed.
Michael Crohen
V.
William D. Ewers and Henry Snyder.
Highways — Action to Recover for Discharging Water oix Plaintijps
hand — Superior and Servient Estate — Damage — Instructions — Costs of
Amended Abstract — Evidence.
1. In any action brouji^ht a^inst highway commissioners, in their indi-
vidual capacities, to recover damapres alleged to have been sustained by
plaintiff through the drainage of water upon his land, it is held: That the
evidence failed to show that plaintiff had suffered any appreciable damage
from the act^ complained of; that plaintiff's land was servient to that from
which the water was drained, and that in a state of nature the water
flowed in the same direction as it did after the acts complained of were
committed.
2. It was competent in the case presented, for qualified witnesses to
give their opinion as to whether the plaintiff's land was damaged by the
acts complained of.
[Opinion filed December 8, 1890.]
Second District — May Term, 1890. 35
Crohen v. Ewers.
Appeal from the Circuit Court of Whiteside County; the
Hon. William Bkown, Judge, presiding.
Mr. J. D. Andrews, for appellant
The owner of high land has no right to open or remove
natural barriers, and let onto lower land water which would
not otherwise naturally flow in that direction. Dayton v.
Drainage Com'rs, 138 III. ^77.
An action lies for flooding the lands of another, even in the
least degi'ce, and without any actual prejudice, the law implies
damages. Sedgwick on Meas. Dam., Sec. 52; Pastorious v.
Fisher, 1 Rawl. 27; Cited 15 111. 531.
Whene a water-course has been diverted in such a way as
to cause water to flow upon the land in a place where it
otherwise would not have gone, an action will lie; and in
such case it is not necessary to prove that the plaintiff has
sustained spe^uific damages, or actual, perceptible injury.
Sedgwick on Damages, 137; Waterman on Trespass, Sec. 12;
Plumley v. Dawson, 1 Gilm. 552; McConnel v. Kibbe, 33
III. 178.
In such a case it would be no defense to prove that the
land was actually benefited. Druly v. Adams, 102 III. 201;
Pfeiffer v. Grossman, 15 111. 53; 1 Waterman on Trespass,
Sec. 12.
The rule that courts will not allow new trials to recover
nominal damages has no application to such cases. Plumley
V. Dawson, 1 Gilm. 552; Druly v. Adams, 102 111. 201.
One's right of property is infringed by any unlawful flow-
age of his land. The omission to show actual -damages, and
the inference that none have been sustained, does not render
the case trivial, and the maxim de minimis non curat lex
has no application. 1 Sutherland on Damages, pp. 12 and 13.
The flooding of land is a direct and physical injury.
Nevins v. Peoria, 41 111. 502; Kigney v. Chicago, 102 111. 72.
No authority given by charter or statute can deprive the
plaintiff of his right 'to recover for such invasion of his
property. Kigney v. Chicago, 102 111. 72.
36 Appellate Courts of Illinois.
' ■ ■ ■ ■
Vol, 89.] Crohen v. Ewers.
No matter how strictly the legislative authority may' have
been followed, if the plaintiff's land has been overflowed an
action will lie. T. W. & W. Ry. v. Morrison, 71 III. 616;
Eigney v. Chicaf^o, 102 111. 74.
If highway commissioners divert water frtm its natural
course, whereby it is caused to flow upon the land of a private
individual, without providing compensation, the tort is that
of the men in their individual capacity. Tearney v. Smith,
86 111. 391; Cooney V. Town of Hartland, 95 111. 517.
The original condemnation proceedings undoubtedly in-
clude compensation for injuries which it was then shown he
would suffer, but are no bar for an action for an alteration in
the method of constructing a highway, or for diverting the
water-course. W., St. L. & F. Ey. v. McDougal, 118 111.
229-238; Tearney v. Smith, 86 111. 395.
Proceedings under the eminent domain act are a concurrent
remedy with an action at law. '* The action for damages
may be regarded as one kind of condemnation proceeding."
Per Sheldon J. C. E. & I. Ey. v. Loeb, 118 111. 214; O. &
M. Ey. V. Wachter, 123 111. 445.
The court erred in allowing parol evidence of the neces-
sity of the ditch, and Ihitt the highway commissioners acted
as an official body in determining to dig the ditches. Chap-
lain V. Highway Com'rs, 129 ill. 651.
The court erred in-allowing witnesses to swear that the land
of the plaintiff had not been damaged. It was the province
of the witnesses to furnish tliQ data, and of the jury to deter-
mine therefrom the amount of damagcj?. 1 Sutherland on
Damages, 794; Van Diisen v. Young, 29 jST. Y. 9; C, etc., E.
E. V. Ball, 5 Ohio State, 568.
Mr. William H. Allen, for appellees.
Where the filling up of ponds on a dominant estate would
have the effect of conducting water on the dominant estate to
a natural passage for surface and other water, on the domi-
nant estate, and extending on to the servient estate, the same
effect may be rightfully attained by a ditch or ditches on the
Second District — May Term, 1890. 37
Crohen v. Ewers.
dominant'estate, made to such natural passage for water, though
the flow in the servient estate may be increased thereby.
Peck V. Harrington, 109 Ilh 611; Commissioners of High-
ways V. Whitfiitt, 15 111. App. 318.
The rule applied to farm drainage is also applied to road
drainage. Commissioners of Highways v. Whitsitt, 15 111.
App. 318; Palmer v. O'Donnell, 15 111. App. 324.
The owner of the superior estate has the right to drain his
lands through any regular channel on his own lands, as may
be required by good husbandry, which carries the water from
the upper to the lower lield, though the flow may be increased,
so he makes no new channels on the servient estate; and may
by drains or ditches drain his own land into the natural chan*
nel or water-course; and it is not necessary that such channel
or water-course should have a definite channel usually flowing
in a particular direction and discharging into some stream or
body of water, but if it be surface water flowing in a regular
channel it will be sufficient. Commissioners of Highwjiys v.
Whitsitt, 15 HI. App. 322.
" Owners of land may drain the same in the general course
of natural drainage, by constructing open or covered drains,
discharging the same into any natural water-course, or into
any natural depression, whereby the water will be carried
into some natural water-course or into some drain on the
public highway, with the consent of the commissioners thereto,
and when such drainage is wholly upon the owner's land
he shall not be liable in damages therefor to any person."
Laws of the State of Illinois, ^ith General Assembly,
A. D. 1885, page 79, section 4.
" That the ditches or drains heretofore made by any county,
or by any county contracting with any incorporated company,
to drain the swamp and overflowed lands, donated to such
county by the State, are hereby declared public ditches or
drains." Session Laws, 111., Thirty-third General Assembly,
A. D. 1883, page 81, section 1.
It is a well settled rule in this State that a new trial will
not be granted to enable a party merely to recover vindictive
or nominal damages. Comstock v. Broseeau, 65 111. 39;
38 Appellate Courts of Illinois.
Vol. 39.] Crohen v. Ewers.
McKee v. Ingalls, 4 Scam. 33; Johnson v. Weedman, 4 Scam.
497.
When the verdict is clearly right, on appeal the same will
not be disturbed. GriflSth v. Sutherland, 53 111. 195; French
V. Lowry, 19 111. 158; Sullivan v. Dollins, 13 111. 85; Hill v.
Ward, 2 Gilm. 285.
A conrt will not grant a new trial, or reverse a judgment
on appeal, because of admission of improper, or the rejection
of proper testimony, or for want of the proper direction or
for the misdirection of the judge who tried the case, provided
the court can see from the whole record that justice has been
done. Greenup v. Stoker, 3 Gilm. 202; Taylor v. Danville,
O. & O. K. K. Co., 10 111. App. 811; DeLand v. Dixon
National Bank, 14 111. App. 219.
Lacby, J. This was an action in case commenced by ap-
pellant against appellees to recover damages for discharging
water on the land of the former by means of certain drains or
ditches alleged to have been dug by appellees. The declara-
tion shows that appellees, who were commissioners of high-
ways, but sued herein in their individual capacity, dug certain
ditches on the public highway opposite and along the north-
east quarter of section 20, T. 20, R 4, and thereby discharged
water upon appellant's land. To this declaration the appel-
lees pleaded not guilty, and specially that they were commis-
sioners of highways, and to repair the highways dug the
ditches all the way in the natural course of the flow of water
from the north to the south from the higher to the lower
ground, to connect with the county ditch and to carry water,
and the said ditches did carry water to the county ditch, which
said county ditch was a public ditch, and that said ditch is in
the general course of natural drainage, and only drained the
said highway in the general course and direction of natural
drainage, and only water that without said ditch would go
there.
The cause was tried by a jury and resulted in a verdict of
not guilty for appellees and the court rendered judgment for
costs against the appellant. From such judgment this appeal
Second District — May Term, 1890. 39
Crohen v. Ewers.
is taken. The situation of the respective lands was about as
follows: The appellant owned the forty-acre tract of land
mentioned in the declaration. One Florence owned another
forty-acre tract just north, and Mr. Ewers, one of the appellees,
owned 120 acres just east of appellant's and Florence's tracts,
in an L shape, the long way being opposite the tract ol
appellants.
The public highway nins from the north to the south, on the
east line of Florence's and appellant's land, and on the west lino
of appellee Ewers', extending south. It was the appellees' acts
in improving this road that are complained of, that is, in dig-
ging certain ditches along the margin of the thrown up road
on either side, and thereby conducting water from the north
from appellee Ewers' land that it is claimed would not other-
wise come onto appellant's land. It appears from the evi-
dence that the general levels of the respective tracts of land
wei^ that both Ewers' and Florence's land were higher than
that of appellant, and water in a state of nature flowed from
Ewers' land on the east and from Florence's land on the north
over and across appellant's land in a southwesterlj^ direction,
making its way toward Meredoced creek, some five or six
miles distant to the west. The land of appellant Florence
and Ewers was flat and was located in the course of the gen-
eral flow of water from the north and east and full of little
depressions or sloughs, mostly extending easterly and west-
erly. Sometimes when Kock creek, which is about one and
one-half miles east, overflowed its banks, water flowed nearly
all over these lands from the east to the west. In fact, the land
of appellant was the servient estate as to the water flowmg
from Florence's and Ewers' lands, and the latter the dominant
or superior estates. The ground through which the road ran
through these lands was flat and wet so that the road had to
be thrown up and bridges for the passage-way of water
opposite the various sloughs put in.
There was an old county ditch crossing the road extending
across Ewers' land, extending from east to west across appel-
lant's land and running on eastward ly to the Meredoced
creek spoken of, and crossing appellant's land on his east line
40 Appellate Courts of Illinois.
Vol, 89.] Crohen v. Ewers.
about midway, and coming, out on his west line not far from
the southwest corner. Opposite tliis ditch on the road, the j
highway commissioners had built a bridge twenty feet wide
for the passage of water into the ditch. Just north of this \
about ten rods, appellees, as highway commissioners, con-
structed another bridge about ten feet wide; this was opposite
tho slough or depression extending from Ewers' land across
the highway and onto and across appellant's land where water
was wont to flow from Ewers' land onto and across ai i el-
lant's land and into the county ditch near the southwest Tur-
ner thereof. Just north of this bridge there was amaher
highway bridge across, a little north of appellant's laud, to
bridge another slough exteuding from a])pellce Ewers' land
to and across Florence's land, where the water gathered and
flowed from east to west from Ewers' land onto and across
Florence's land and entering appellant's land on his north line
about sixty-eight rods west from the road and then running
southwesterly to his southwest corner into the old county
ditch and thence oflF. The three sloughs, the one opjiosite
the county ditch bridge, the one at the flrst bridge north of
it and the one at the Florence bridge, so called, had a more or
less imperfect connection east on the lands of Ewers, in which
the water ran from the north most one to the southernmost
one and then into the county ditch. This connection prob-
ably did not perfectlj' drain tlie two northern sloughs to the
south. There were on the lino of the road between these
sloughs, little swells of land of some fourteen inches or so at
the highest point, that prevented the water running from the
one to the other from the north to the south.
For some years prior to the time of the work complained
of, the road along Uie course of these lauds had been graded
np by throwing the dirt from the margin of the road on either
side, making a bank in the center of the road for travel and
a ditch on either side for water, except certain benches across
the ditch which were not taken out; probably two of them on
either side below Florence's land and above the second bridije,
and some portions of the ditch between the second bridge aud
Second Distkict — May Term, 1890. 41
Crohen v. Ewers.
the county ditch, were also not taken out. In improving the'
road the appellees built the second bridge and dug a passage
way for water under it, as a great preponderance of the evi-
dence shows, about even with the original surface of the
ground, and also took out the benches in the ditch and cleaned
out and deepened the ditches from the second bridge to the
county ditch, so that the water could have a freer passage.
Now, the cleaning out of the ditches and removing the
benches of earth in them, are the acts that are complained of *
as illegal and from which the damages for which suit is
brought resulted, as is alleged. The putting in the bridge
and the digging of the passage way under it was certainly in
itself not wrongful, as at that point there was a regular depres-
sion through which water was accustomed to pass from the
east to the west on appellant's land. It appears also that
appellant himself, when he was one of the commissioners of
highways, excavated these ditches from the Florence bridge
south to a point below his line, but, as he claims, left benches
to hold back the water. Now, the commissioners of hisrh-
ways, the appellees, found that these ditches were conducting
the water down and overflowing the road bed, and in order
to improve the highway, they cleaned out the ditches all the
way down to the county ditch, so the water could pass out
through such ditch. This we think they had a right unques-
tionably to do, if in so doing •they did not injure appellant's
land, or if the}' conducted such water into the county ditch
or into some outlet or depression on appellant's land over
which the water from, the appellee Ewers' estate had a right
to I'.ass. It does not appear from the evidence very satisfac-
toril}', how much of a slough or depression existed on and
over appellant's land southwesterly to the county ditch from
the point where the second bridge was built, but it shows
that on appellee Ewers' land opposite, there was a well-marked
slough and depression, out of which much water flowed at
times in a state of nature and emptied out at that point on
appellant's land, and that it found its way across his land very
readily to the county ditch.
There was at times such a flow that it even washed away
42 Appellate Courts of Illinois.
Vol. 39.] Crohen v. Ewers.
the road embankment at? that point, and there was at that
point across appellant^s land a fall from there to the county
ditch of over fonr feet to the mile. We are inclined to think
that the evidence was sufBcient to sustain the claim that this
was a natural depression into which ap|.)ellee Ewers, in his
own right as well as in his capacity as commissioner of high-
ways, might conduct the water from the superior to the ser-
vient estate, even if the flow of the water in such depression
was thereby increased ; and he might also conduct it into the
county ditch. But the evidence, as we think, more than war-
ranted the jury in finding by their verdict that the flow was
not enough, if any, increased to be of any damage to appel-
lant. In furtherance of good husbandry, and the public bene-
fits to the public from the improvements of the highways, the
law compels the owner of the servient estate to suflFer all such
inappreciable damages as these. Neither the appellees nor the
public will acquire a new easement for the flow of water over
the appellant's land by the construction and maintenance of
the ditches in the present form. The appellee Ewers and the
public had that before ; and as the flow of water over his land
has not been increased so as to damage him in any degree, he
has no cause of action. The rule of law laid down in Peck
V. Harrington, 109 111. 611, Converse v. Whitsitt, 15 111. App.
318, and Palmer v. O'Donnell, 15 111. App. 324, we think is
applicable here and will govern in this case.
It was not error to allow witnesses to testify that in their opin-
ion the opening of the ditches along the highway caused appel-
lant no damages. The question of damages and the amount
thereof, if any, was a matter about which men acquainted with
such matterscould give theiropinion. If the appellant wanted
to inquire into the basis of that opinion he could do so by cross-
examination. The appellees' instructions to the effect that
unless the jury believe from the evidence that appellant was
damaged by the wrongful acts of appellees he could not
recover, were not erroneous. There was. no pretense that if the
water went over the appellant's land in increased quantities,
but that appellant was damaged, and if the appellees' acts
were illegal and tortious, that the former should recover.
Secoxd Disteict — May Term, 1890.
43
Burlington. Insurance Co. v. Brockway.
The jury was fully instrpcted on this point on appellant's
motion, and if he was simply suing to recover nominal dam-
ages and he Imd desired to have the law laid down more
clearly on the point for such recovery, lie should have asked
instructions directed to that question particularly. We think
substantial justice has been done and tliat the verdict was in
accordance with the evidence.
Appellees have made out an amended abstract in the case,
and move the court to rule that appellant pay to the appellees
the cost of such abstract. "We are of the opinion that appel-
lant's abstract was not fair to appellees and did not contain the
substance of all their evidence in many material points. The
judgment of the court below is therefore affirmed and the
appellant ordered to pay to appellees the costs of the additional
abstract. Judgment affirmed.
Burlington Insurance Company
V.
F. F. Brockway.
89 43
1388 644
F%re Insurance — Policy— Interpretation of Forfeiture Clause — Vacancy,
In an action npon an insurance policy upon a building ** while occupied
by assured as a country store and dwelling/* which policy contained a
clause providing for a forfeiture in case the building became vacant and
unoccupied for more than ten days without notice to the company, etc.,
it is held: That the forfeiture did not attiich when the building ceased to
be occupied as a dwelling, but only in case it was not occupied at all.
[Opinion filed December 8, 1890.]
Appeal from the Ch'cnit Court of Stark County; the Hon.
T. II. Skaw, Judge, presiding.
Messrs. M. Shallenbeeger and T. G. Harper, for appel-
lant.
Messrs. C. C. Wilson, Frank Thomas and B. F. Thompson,
for appellee.
44 Appellate Courts of Illinois.
Vol. 39] Burlington Insurance Co. v. Brockway.
C. B. Smith, P. J. This was an action in assumpsit brought
by appellee against appellant on two policies of insurance,
numbered respectively 12,199 and 12,200, issued to appellee on
his building occupied as a store and residence, where the
insurance was effected, and also upon his stock of goods in said
building. After the insurance was taken out the building and
goods took fire and were destroyed, and this suit was brought
to recover the value of property so destroyed. On the trial
the appellee recoved a judgment for $3,681). 90. From that
judgment this appeal is prosecuted and various errors assigned
upon the record. Both policies were taken out and dated
March 14, 1888. When the policies were taken out appellee
occupied the upper part of the store with his family, and used
it for his residence. About the 5th of November, 1888, appel-
lee moved his family out of the store and moved to Galesburg,
leaving his sou in the store in charge of the goods and to carry
on the business. On the 27th of November, 1888, the store
took fire, and both store and goods were consumed.
Policy No. 12,199 provided among other things as follows:
"$1,500 on the two-story shingle roof frame building while
occupied by assured as a country store and dwelling." And
as to the stock of goods it provided as follows: "$2,000 on
the stock of dry goods, while contained in the above described
building, occupied as a country store and dwelling."
Policy No. 12,200 provides for insurance of "$1,000 on the
two-story shingle roof, frame building while occupied by
assured as a country store, warehouse, dwelling or hall."
Both policies seem to be alike in all other respects. Among
the various clauses in these policies providing for forfeiture
under them by the assured, is the following: "Or if tlie
premises hereby insured are, or shall hereafter become vacant
or unoccupied, for more than ten days without notice to the
company in each case, and consent indorsed herein, then this
policy to be void." Another cause of forfeiture was that if
the assured should refuse to submit to an examination under
oath, concerning matters pertinent to the insurance and loss,
then he should forfeit all rights under it.
The defendant pleaded the general issue and six special
pleas, as follows :
Second District — May Term, 1890. 45
Burlinj^ton Insurance Co. v. Brock way.
1. That the assured made false statements in his appli-
cation.
2. That the assm'cd, by his own negligence, caused his loss
in the use of a kerosene lamp.
3. That the premises were not occnpfed as a dwelling at
tiie time of the loss.
4. That the assured refused to submit to an examination
under oath, touching his loss.
Issues were joined on those various pleas.
The ])roof showed that tlie building caught fire shortly after
the store was closed, on the night of the 27th of November,
1888, and was quickly consumed. There is no proof that the
assured or his son, who was then in charge of the store, was
guilty of any negligence or wrong-doing, in connection with
the fire.
Appellant makes its principal, if not entire, defense here,
under its 3d and 4th pleas.
The 4th, and all other special pleas, involved only questions
of fact, and the issues joined upon them were for the jury to
try, and we see no reason for interfering with their finding
upon these questions of fact involved. There is a direct con-
flict between the agent of appellant and appellee, upon the
question as to whether appellee refused to submit to an exam-
ination under oath, as required by the terms of the policy.
The jury believed appellee, and we can not say they were not
justified in doing so. While the 3d plea presents a question
of fact, it still remains for the court to construe the terms of
the policy under the admitted fact that the building was not
occupied as a dwelling house by the assured, at the time of
the fire. The clause providing for a forfeiture of all, or any
right under these policies on account of non-occupation of the
building, does not provide for a forfeiture for a failure to
occupy it as a dwelling, but for a failure to occupy it
at all for any purpose without notice to the company.
The company having itself selected and stated the grounds
upon which the assured shall lose all benefit of assur-
ance, and the assured having accepted the policy with such
provision^ the presumption will be indulged that that was the
46 Appellate Courts of Illinois.
Vol. o9.] Burlington Insurance Co. r. Brockway.
only ground of forfeiture upon which the company intended
to rely for a failure to occupy the building as stated in the
contracting clause of the policy; and the company will not now
be permitted to interpolate an additional ground of forfeiture
by construction. In order to enable the company to have the
benefit of the forfeiture specified, the proof must bring it
within the very letter and terms of the forfeiting clause, and
show a total abandonment or non-occupying of the building,
which it entirely fails to do. The law abhors forfeitures, and
will show them no mercv nor favor. These contracts of insur-
ance are wholly prepared by the companies. They dictate and
name all the terms, conditions and forfeitures of their con-
tracts. Not even their own agents are permitted to negotiate
the terms of insurance or conditions of the contracts of insur-
ance, or in any manner to change the printed forms. The
assured is a passive and helpless party in their hands, having
absolutely nothing to do but accept such printed terms as
the company sees fit to impose, or let his property go without
insurance. There is, therefore, great justice and propriety in
construing these one-sided contracts most strongly against
him who prepares them in his own interest and for his own
gain, and many times in terms so subtle and wary as not to be
understood, and well nigh impossible to bo kept and observed,
on the part of the assured. These arc the very maxims of the
law, and are so consistent with justice and the uniform ruh'ng
of the courts everywhere, that they need no citations of
authority in their support. If it be conceded that the state-
ment in the policies concerning the character of the occupancy
of the promises is to be taken as a warranty of the truth of
that statement and- that the warranty has failed, and that it is
not a mere description of the premises, still the parties have
provided but one penalty for such breach of the warranty,
viz. : the one of forfeiture of all right under the policy, in
case of entire non-occupation of the premises.
After a careful examination of this record, and of the various
objections urged for a reversal, we have been unable to find
any error, and the judgment will therefore be affirmed.
Jvdgmeivt affirmed.
Second District — May Term, 1890. 47
Brotherhood of Railroad Brakemen v. Knowles.
The Brotherhood of Railroad Brakemen
V.
Susannah Knowles et al.
JJfe Intturanee — Policy — Conditions — Breach — Alleged Kan-payment of
Dues,
In an action on a policy of insurance where the defense was that the dues
of deceased had not been received by defendant, it is held: That the
evidence conclusively showed that the deceased had paid his dues to the
proper olHcer of his local lodge, and that the defense was wholly without
merit,
[Opinion filed December 11, 1890.]
Appeal from the Circuit Court of Knox County; the Hon.
Artul'R a. Smith, Judge, presiding.
Mr. M. J. DouGUERTT, for appellant.
Messrs. Williams, Lawrence & Bancroft, for appellees.
Per Curiam, This suit is brought by appellee and Eli C.
Knowles, upon an insurance policy issued to J. W. Miller by
the appellants, on the 23d day of December, 18S5. The
policy was as follows ;
« Galesburo, 111., Dec. 23d, 1885.
This Policy of Assurance witnesseth:
That the Brotherhood of Railroad Brakemen of the "West-
ern Hemisphere, in consideration of the grand dues to them
duly paid in accordance with the provisions of the constitu-
tion of said brotherhood by J. W. Miller, and of the annual
payment of such grand dues every year during tlie con-
tinuance of this policy, do assure the life of sjiid member, J.
W. Miller.
And the said brotherhood do hereby promise and agree to
pay the amount of insurance that may at the time of the
death of said assured be justly due and owing, according to
the provisions of said constitution, as well as the like sum in
48 Appellate Courts of Tlltxots.
I "III I I ■ ■■ II ^m ^M
Vol. £9.] Brotherhood of Railroiid Brakemen v. Knowles.
case of disability of said assured, in accordance with the
terms and conditions further provided in said constitution.
The said sum or sums to be paid as stipulated therein to and
for the sole use of such person or persons to whom this policy
shall be made assignable by said assured, and if such person
or persons shall, at the death of such assured, be not living,
then to the nearest heir or Jieirs, on receiving proof of the
death of said assured, and the identity and proof of right in
claimant to inherit the same according to the requirements of
said constitution, any indebtedness to the brotherhood on
account of this policy being first deducted therefrom.
In every case when this policy shall cease and terminate, or
be null and void, by reason of immoral or other misconduct,
and the assured shall forfeit his membership in the lodge,
according to the provisions of the constitution of this brother-
hood, then all payments thereon shall be forfeited to the
brotherhood and the policy is canceled."
J. W. Miller died on the 28th day of July, 1886. Between
the time he became a member and the time of his death
something like eight or nine assessments had been made upon
him and other members to meet the losses for which the com-
pany was liable. The proof is clear and uncontradicted that
Miller ])aid all his assessments and dues required by the con-
stitution and by-laws, as they became due, some of them before
they became due, to the ofEcer authorized to deliver them, in
the subordinate lodge to which he belonged, and took the
receipt of such officer or his deputy for the same, under the
seal of the corporation. It appears, however, that the treas-
urer of the subordinate lodge neglected to report and pay over
these assessments, with others which he had collected, to the
Grand Lodge, as his duty required liim to do. As a further
evidence of Miller having ] aid all his dues and assessments,
his own subordinate lodge had issued to him a "traveling
card," which under the by-laws could not be issued to any
member not in good standing and who was in arrears of dues
or assessments.
This record shows clearly that Miller did his wholo duty
and kept his membership good up to the time of his death.
Second District — May Term, 1890. 49
Brotherhood of Railroad Brake men v. Knowles.
Uj^OD Ills death the proper proof of death was made and pay-
ment demanded of the sum of $600 due on the poh'cy, but
payment was refused by the Grand Lodge through which the
payment liad to be made, because the Grand Lodge had not
received tlie money which Miller paid in, and that is the
defense here reh'ed on. Tlie plaintiffs liad judgment below
for the amount due on the poh'cy, and the appellant appeals
from that judgment and assigns numerous errors, none of
which we regard as having any merit.
Miller paid his money to the proper officer, and the failure
of that officer to report it to his superior is no concern of tlie
insured. But the proof in fact shows that the local lodge to
which Miller belonged and to which he paid his money made
up the default of tlieir treasurer for a number of its members,
who had paid as Miller had, qnd sentevery dollar that was due
to the Grand Lodge, after Millers deatli, so that the Grand
Lodge did, in fact, get the money due it, and lias kept and
now has it; and so far as we can see the Grand Lodge now
has in its treasury the very money that was collected to pay
tlie loss resulting from Miller's death. It is contended by
appellant that the receipts given to Miller upon his payments
are fraudulent, and that he in fact paid nothing. This charge
has not a particle of evidence in its support and is utterly
frivolous. Complaint is also made that theconrt erred in giv-
ing and refusing instructions and in admitting and refusing
evidence. We liave carefully examined the instructions, and
the proceedings before the court on the trial, and we find no
substantial error of any kind committed against appellant.
Tlie instructions given for it were all that it liad any right to
ask. The refused instructions submitted to the jury questions
about which there was no controversy whatever, and were
properly refused. We think the entire defense was without
the shadow of merit of any kind, and the judgment and pro-
ceedings of the Circuit Court were in all respects regular and
right, and the judgment will therefore be affirm.ed.
Judgment aflinacd.
Vol. XXXIX 4
50 Appellate Courts of Illinois.
Vol. 39.] Blain v. Desrosiera.
C. C. Blain
V.
E. Desrosfers.
Partnerships — Bill of Particufars — Evidence.
In an action of assumpsit brought to recover money allegred to have been
loaned, where the defense claimed that the matters in controverRy were
part of a partnership transaction, it is held: That the issues were prop-
erly submitted to a jury and that the evidence sustained the verdict for the
plaintiff.
[Opinion filed December 11, 1890.]
Appeal from the Circuit Court of Kankakee Count v: the
« 7
lion. N. J. PiLSBURY, Judge, presiding.
Mr. n. K. Wheklek, for appellant.
Messrs. Richardson Bros., for appellee.
Upton, J. This suit was commenced in the Circuit Court
of Kankakee County by the appellee against the af)pellant.
The action was assumpsit. The declaration contained the
common counts only. The defense set up was, that the
cause of action in the suit arose from money paid and service
rendered by appellee to and for a copartnership theretofore
doing business as Blain & Desrosicrs, of which appellee and
appellant were members, the business of which is still
unsettled and could only be the subject of investigation in a
court of equity. A bill of particulars was filed with the
declaration, in which appellee claimed $641, which was subse-
quently amended by the further claim of $200 for money
loaned to appellant, with interest at six per cent, being $3d,
and the further sum of S5, claimed to have beert loaned to
appellant's wife, aggregating $241.
The cause was heard in the court below with a jury, who
found a verdict for the appellee in the sum of $240, upon
Second District — May Term, 1890. 51
Blain r. Desrosiers.
Tvliich tlie court, after overruling a motion for a new trial,
rendered judgment, to which appellant excepted and appealed
to this court. The error assigned upon the record challenges
the rulings of the trial court in allowing appellee to intro-
duce evidence of the $200, money claimed to have been
loaned to appellant, because it was not on the bill of particu-
lars, and committed furthei' error in permitting appellee to
introduce in evidence the memoranda or book of accounts of
appellee, tending to show the receipt by appellant of the
$200; also erred in not dismissing the suit, because the claim
sued upon was a co-partnership account, and that the verdict
of the jury is not supported by the evidence or the law of the
case, and a new trial should have been awarded appellant on
his motion therefor. No complaint is made of* the action of
the trial court in other particulars. The appellant in his
evidence admits that he received of appellee the $200,
claimed in appellee's bill of particulars; that the entries upon
the book or memorandum of appellee which was introduced
in evidence, of $125 and $75, were written therein by him-
self. Both appellee and appellant testify to that fact, and
these two items constituted the $200 then claimed by the
appellee. Appellee also presented a due bill signed by a])pel-
lant for $40, made payable to appellee. Appellant admits
giving the due bill, but claimed that he paid the same to
appellee and neglected to take it up. To this extent it is
plain, with our reference to the book of appellee or his mem-
orandum, which the court admitted in evidence (and which
is one of the principal errors complained of), that the appel-
lant had received moneys of the appellee to the extent of
$240, and for which he should in some way account with
appellee. This he attempted to do (under his plea) by testify-
ing that he received the $200 as a portion of the capital
stock paid to him by appellee as copartner in the firm of
Blain & Desrosiers, which was flatly denied by the appellee.
The due bill for the $40 produced by appellee was also
claimed to have been paid as before stated, and this was flatly
denied by appellee. These questions thus sharply defined
must have been fully understood by the jury. The one assert-
52 Appellate Courts of Illinois.
Vol. 39.] Blain v. Desrosiers.
ing a given state of facts, which, if beh'eved, would compel a
verdict in favor of appellant — the denial of the other, which,
if credited, must result in a judgment for appellee; the parties
were both before the jury in person, and testified in the case.
The jury believed the appellee in that contention, and conse-
quently gave him a verdict for his claim to the extent indi-
cated, as before stated, and we can not fay they were not fully
warranted in so finding. It by no means follows that the jury
in their determination disregarded a portion of the evidence
in the case, by not taking into account the other items in the
bill of particulars as claimed by the appellee. They might
well have found from the evidence that the copartnership as
claimed by appellant did in fact exist, and that in fact the
other items on the bill of particulars claimed by appellee were
matters pertaining thereto, and were not under the instruc-
tions of the court for adjudication in this suit, and that, too,
without in the least inpairing the credibility of the appellee.
It is manifest from the record before us, that appellee is not
possessed of large business experience or extensive knowl-
edge of business aifairs, and from his surroundings would not
be expected to be versed in law to such an extent as to enable
him to know what acts would constitute him a copartner of
appellant, while appellant, it would seem, was by far his supe-
rior in that regard.
It is plain the court did not err in submitting the question
of the copartnership alleged to exist, to the jury. It would
liave been manifest error to have done otherwise as there was
a conflict of evidence upon that issue.
We have carefully examined the record before us in the
light of the errors pointed out and the arguments of counsel
made, and we fail to find any reversible error herein, and the
judgment of the Circuit Court must be affirmed.
Jiidgment affirmed.
•>
Second District — May Term, 1890. 53
Chase v. Nelson.
Maurice J. Chase
V.
John Nelson, Administrator.
Negligence — Action to Recover Damages for Death Alleged to Have
Been Caused hy Malpractice — Instructions — Construction of iStatiUe —
Burden of Proof,
1. In an action to recover for death alleged to have been caused by the
njalpractice of the defendant, a physician, an instruction which authorized
a recovery by the plaintiff, in case the jury found that the negligence of
defendant contributed to the death of plaintiff's intestate, was erroneous.
Under the statute of this State, to justify a recovery in such case, the neg-
ligence of defendant must have been the direct cause of death.
2. Under the pleadings and evidence in this case the burden of proof
wan on the plaintiff all the way through, and an instruction that in a cer-
tain contingency the burden might be shifted to the defendant was error.
3. It is the duty of a trial court to see that all of its instructions are
correct and harmonious, and not to trust to good ones to cure bad ones.
[Opinion filed December 11, 1890.]
Appeal from the Circuit Court of Knox County; the Hon.
Abthue a. Smith, Judge, presiding.
• Messrs. J. J. & G. Tuknicliff and J. A. McKenzie, for
appellant.
Messrs. Forrest F. Cooke and A. M. Brown, for appellee.
C. B. Smith, P. J. This was an action on the case brought
by appellee, administrator of the estate of B. J. Nelson
against appellant, Chase, to recover damages for alleged mal-
practice by appellant in treating B. J. Nelson in such negli-
gent and unskillful manner, that B. J. Nelson died as the
result of such unskillful treatment.
Tlie case was tried upon the following amended count in
the declaration, viz.:
"And whereas, the defendant, before and at the time of the
committing of the grievances hereinafter mentioned, was
64 Appellate Coijbts of Illinois.
Vol. 39. J Chase v. Nelson.
exercising the profession of a physician, and the said Bror
Nelson, deceased, while the defendant was so exercising such
profession, there retained and employed the defendant as snch
physician for reward, to attend to and treat him for the cure
of a certain sickness under which he was then and there suffer-
ing. And thereupon the defendant as such physician, accepted
such retainer and employment and entered upon the treat-
ment of the said Bror Nelson in pursuance thereof, and con-
tinued to treat the said Nelson a long space of time, to wit,
thirty days next following. And the plaintiflE avers that the
disease with which the said Nelson was suffering, and for
which the defendant was called to treat, and which the defend-
ant undertook to cure, required, as stated to said Nelson, that
his urine should be drawn away by mechanical means, the
said Nelson at that time being unable to pass his urine in the
ordinary manner, and this being his sole and only trouble, for
which the defendant was called to treat, and the plaint-
iff avers that the defendant in his attempt to cure the
said Nelson of said trouble, introduced into the urethra of
the said Nelson, and so on into the opening of his bladder,
one hollow tube called a catheter, for the purpose of drawing
away the urine so detained in the bladder of the said Nelson.
And the plaintiff avers that the defendant while performing
the said operation, either because of the defective character
of the cathctei' used, or on account of the unskillful manner
of its use by the said defendant, broke said catheter within
the urethra of the said Nelson, so that when said catheter
was attempted to be withdrawn from the urethra of the said
Nelson, a large portion of said rubber tube and catheter was
left within the urethra; and the plaintiff avers that on account
of the danger incident to the presence of any foreign sub-
stance within the passages of the body, and its great liability
to produce inflammation of the parts and so result fatally, it
became and was the duty of the defendant to iiave immedi-
ately removed said broken piece of catheter from the urethra
of said Nelson, and so saved the said Nelson from the suffer-
ings and complications of diseases which followed. But the
Second District — May Term, 1890. 55
Chase v. Nelson.
defendant, whoUj unmindful of his duty in the premises,
refused and neglected to remove said broken catheter; indeed,
claimed that it was unnecessary; that it would dissolve shortly
and come away without trouble to or danger to the said Xo!-
son, and so the defendant, although the said catheter, by the
exercise of ordinary skill and care, could have been easily
taken away, allowed the same to remain in the urethra, where
it was a source of constant annoyance and pain to the said
Nelson, until finally said broken catheter worked itself
through and into the bladder, where it was allowed to remain
by the defendant, until inflammation and thickening of the
bladder took place, and so great was the disease of the blad-
der, caused wholly by the presence of said catheter within the
bladder, on account of the defendant's neglect and want of
ordinary care and skill in not removing the same, that he, the
said Bror Nelson, on tlie 11th of September, died; and the
])laintiff avers that the death of the said Bror Nelson was
caused by reason of the unskillful conduct of the defendant
aforesaid; and the plaintiff avers that the said Bror Nelson
hit surviving him one Charlotte Nelson, his widow, and
minor children, his next of kin, who are still living, and by
reason of the death of said Nelson, said widow is deprived of
her means of support, and said children of their moans of
support and education, to the damage of the plaintiff, as
administrator, of $5,000, and therefore he brings suit. And
the plaintiff brings into court his 'letter of administration,
granted by the County Court of the county aforesaid.
Cooke & Bkown, Attorneys."
Plea of not guilty by defendant filed November 23, 1889.
A trial was had at the March term, 1890, before a jury, result-
ing in a verdict for the plaintiff for $2,250. The court over-
ruled a motion for a new trial and gave judgment on the
verdict Appellant now brings the record here on appeal
and assigns numerous errors on the record. The chief errors
relied upon however are, that the verdict is against tlie evi-
dence, and that the court erred in giving instructions for the
plaintiff, and refusing instructions for the defendant. In the
5f) Appellate Courts of Illinois.
Vol. 39.] Chase v. Nelson.
view we take of the ease it will only be necessary for ns to
consider the assignment of errors, relating to the instructions.
Inasmuch as the judgment must be reversed for erroneous
instructions, we shall express no opinion as to the weight or
value of the evidence on either side, except to say that the
statements in the plaintiff's declaration as to the nature ox
B. J. iS^elson's affection, and as to the use mudeof the catheter,
and the fact of its having been broken off in the body of said
Nelson, as alleged, while in the hands of appellant, seem to be
supported by the evidence, and, as w^e understand the proof,
upon these averments in the declaration there is no substan-
tial controversy, except that the defendant insists that Nelson
was laboring under other serious and dangerous maladies at the
time he was called, besides the retention of his urine.
The only real controversy was as to whether appellant
used reasonable and ordinary skill as a physician and surgeon
in the care and use of his catheter, and in leaving the broken
catheter in the urethra of B. J. Nelson, after it was broken
off. Upon these controverted points there was a great deal of
testimony taken on both sides, upon the weight of which wo
express no opinion. It is sufHcient for our purpose to say
that the evidence submitted tended to prove the respective
theories of both plaintiff and defendant, and therefore called
for correct and accurate instructions from the court.
The first instfiiction given for the plaintiff contained among
other things this clause, viz.:
" If, therefore, the jury believe from the evidence in this
case that the defendant undertook the treatment of B. J.
Nelson for a fee, and that in treating him a catheter was
broken in his urethra, and by reason of the want of the exer-
cise of ordinary care and skill the broken ])art of said catheter
was allowed to remain in the urethra and finally to pass into
the bladder of B. J. Nelson, and that disease was thereby
created that caused or contributed to the death of B. J. Nelson,
then your verdict must be for the plaintiff* in such an amount
as you believe the plaintiff has from all the evidence sustained,
not exceeding .$5,000."
This part of the instruction was erroneous and should have
Second District — May Term, 1890. 67
Chase v. Nelson.
been stricken out, or the whole of it refused. This action is
based upon the statute, Chap. 70, Sec. 1, and but for the stat-
ute could not be maintained. Under the common law no
such right of action existed. The statute being in derogation
of the common law should have a reasonably strict construc-
tion. Its benefits should not bo extended to causes not fairl}'^
within its language or fairly inferable from its language.
Tliompson v. Weller, 85 111. 197. The statute under which
this action is commenced provides that "whenever the death
of a person is causedhy the wrongful act, neglect or default of
another," then such person who so caused the death shall be
liable, etc. Now, the plain and manifest meaning of this
statute is that " the wrongful act, neglect, or default" must bo
the direct cause of the death, and must also be such an act as
would likely produce death, and death thereby be the conse-
quence, sooner or later, of the wrongful act. The instruction
under consideration informed the jury that if the negligence
of appellant, Chase, caused or contributed to the death of Xel-
son, then they must find the defendant guilty. Under this
instruction, no matter how remotely the negligent act of de-
fendant may have contributed to hasten the deatli of Nelson,
still he would be liable notwithstanding ; the jury ma}' have
been satisfied that the disease under which Nelson was suffer-
ing when defendant was called to treat him, would or must
result fatally to him. This instruction interpolated a very
important word in the statute, which the Legislature did not
see fit to put in it. For that reason this first instruction was
wrong.
The third instruction given for the plaintiff is as follows:
"3, The court instructs the jury, that if at the time Dr.
Wilson entered upon the treatment of B. J. Nelson on the
7th day of September, 1888, that he, Nelson, was suffering
from inflammation of the urethra, bladder and prostate gland,
together with other diseases, and that such troubles were
caused by the lack of the exercise of ordinary care and skill
on the part of the defendant, and that his condition was such
that death must take place in a short time unless medical
relief was given him, then it is incumbent upon the defend-
58 Appellate Courts of Illinois.
Voi^ 89.] Chase v. Nelson.
aiit to show by a preponderance of the evidence that the
death of B. J. Nelson resulted from other causes that were
not the result of anj conditions present at the time defendant
ceased to treat him, and Dr. Wilson assumed charge of the
case."
This instruction is open to two objections at least The
first one is that it is obscure and blind in its meaning and lia-
b'e to be misunderstood and mislead the jury. The proof is
that when appellant was called to treat Nelson in the first
instance, he at least had retention of the urine, which of
itself was a very serious and dangerous disccise. The evidence
also tends to show that lie was afflicted with other disorders,
such as hernia and great enlargement of the prostate gland.
The evidence on the part of the defendant tended strongly to
prove that Nelson's health was in a very precarious condition if
he was not in danger of an early demise. He was sixty years
old. These disordel^ were upon him when appellant was called
to treat him, and in his attempt to relieve him from the suffer-
ing caused by the retention of the urine, the catheter was
broken in the urethra. It is clear to us that while it is possi-
ble that the breaking off of the catheter aggravated the suf-
ferings of Nelson and may have hastened his death, still the
])roof is that Chase was not the author of his enlarged prostate
gland nor of his hernia, nor of the retention of liis urine.
Yet the jury are told in this instruction that " the burden of
proof is on appellant to show that the death of Nelson resulted
from other causes that were not the result of any conditions
present at the time the defendant came to treat him."
This instruction is clearly wrong. The burden was on the
plaintiff, at every stage of the case, to show that Nelson's
death was caused by the negligence of appellant. Appellant
set up no affirmative, independent defense that cast the bur-
den on him. He simi)ly pleaded not guilty, and in his defense
he showed the general condition of the health of Nelson and
the various maladies with which he was suffering, and the
manner of his treatmont by himself, and others who followed
liim, as a part of the whole transaction. He had a right in his
defense to show that even if his act was a negligent one, that
Second District — May Term, 1890. 59
Chase v. Nelson.
still the nature of Nelson's afflictions were of such a character
that he would have died soon at all events; and although such
showing might not constitute a complete bar to the action, it
was still important in mitigation of damages. He had the
right to show in bar of the action under the general issue that
the operation performed upon Nelson by Dr. Wilson and
others caused his death; but when he attempted to show this,
he did not assume the burden of the proof upon that or any
other question in the case. The burden was all the time on
the appellee at all stages of the case. Under the evidence
and theory upon which the case was tried, we see no place
where the burden of the evidence would shift upon the
defense, and the giving of that instruction was therefore erro-
neous. The fourth instruction for appellee is argumentative,
and calls particular attention to some particular facts, to the
exclusion of others equally important, and should not have
been given.
The defendant asked the court to give the jury the follow-
ing instruction :
9. *'The jury must remember that the burden of proof is
on the plaintiff to maintain all the material facts necessary to
make out his case by a preponderance of the evidence. The
presumptions of the law in absence of evidence to the con-
trary are that the defendant is not guilty, and unless by a
preponderance of the testimony the jury are made to believe
that the defendant is guilty as charged, then the verdict of
the jury will be not (fuiltyr
But the court refused it because it was a duplicate of
another given. We do not find any other instruction given
for appellant that can be fairly claimed to be a duplicate of
this one; and," inasmuch as it is a clear and correct statement
of the law applicable to the case, it should have been given.
Counsel for appellee contend, when all the instructions on
both sides are taken together, that the jury could not have
been misled.
We think it very unsafe practice to expect juries to pick
out and act on good instructions and reject erroneous ones, or
even to expect the jury to harmonize a large mass of con-
39 60i
81 209
60 Appellate Courts of Illijs^ois.
Vol. 39.] Wilmerton v. Sample.
flictin<^ and adroitly drawn instructions. They are as likely
to follow bad as good instructions. It is the bonnden duty of
tlie court to see that all its instructions are correct and har-
monious, and not to trust to good ones to cure bad ones.
Quinn v. Donovan, 85 111. 194; Dempsey v. Bowen, 25 111.
App. 193. Every instruction should bo a direct, short and
clear statement of the law, and should be free from uncer-
tainty and doubtful meaning.
For the errors above indicated the judgment will be
reversed and remanded.
lieversed and remanded.
William Wilmerton
8» 60.' ^'
^r^ Samuel Sample.
Malicious Prosecution — Instructions — Erroneous Assumptions in — Pro-
lixity and Argumentative Character qf — Evidence — Introduction of Record
to Show Plaintiff^s Acquittal,
1. AllhouRh instructions contain correct proposiiions of law, yet where
such propositions are repeated " so often and in so many different forms
by the court as to assume the character of an argument from the court,
such instructions are open to serious criticism.
2. In an action for malicious prosecution, where the plaintiff had been
arrested for malicious mischief, an instruction that a person who is in pos-
session of property, claiming to be the owner of it, can not be gruilty of
malicious mischief in de*?troying the same, nor of larceny in regard to the
same, is erroneous in that it ignores the question whether the claim of
ownership is made in good faith.
3. Instructions in the case at bar held to have been erroneous, in that
they assumed the existence of material facts which were in dispute and
were based upon hypotheses which were unsupported by any evidence.
4. Whether it was error to admit in evidence the record of the trial and
acquittal of plaintiff on the indictment for malicious mischief, qu(tr€.
[Opinion filed December 11, 1890.]
Second District — May Term, 1890. 61
Wilmerton v. Sample.
Appeal from the Circuit Court of Mercer County; the
lion. Arthur A. Smith, Judge, presiding.
Messrs. J. 11. Connell and J. M. Brock, iov appellant.
Messrs. Bassett & Bassett, for appellee.
C. B. Smith, P. J. This was an action on the case. The
declaration contains seven counts. Tlie first charges appellant
with assaultingand beafing appellee. The second with assault-
ing appellee, and taking him before a justice and imprison-
ing him without probable cause. The third with committing
a trespass upon appellee's house and destroying doors and
windows. The fourth with trespassing on the land of appel-
lee and destroying grass, corn, etc.; and the fifth with destroy-
ing appellee's trees. We do not understand that any serious
effort is made to sustain this judgment under any of the first
five counts, and even if there were anv such claim it is clear
there is no suflicient evidence in the record to justify such
claim. The sixth charges that appellant went before a justice
jind falsely and maliciously procured the arrest and imprison-
ment of appellee without probable cause, and the seventh that
appellant falsely and maliciously and without probable cause
went before the grand jury and procured an indictment against
appellee for malicious mischief.
The general issue was filed and upon a trial the plaintiff
obtained a verdict for $181, and after overruling a motion for
a new trial the court gave judgment upon the verdict. The
record is now brought here by appellant, who insists that the
verdict is against the evidence and that the court erred in
giving and refusing instructions and in receiving and rejecting
evidence to the prejudice of appellant.
The record in this case shows that this controversy is the
tiual result and culmination of a long effort on the part of
appellee to get the title to certain land of which appellant
claimed to be the owner, through judicial proceedings.
Appellant was claiming the title, and the right to possession
at least, of one forty-acre tract upon which a house stood.
62 Appellate Courts of Illinois.
Vol. 39.1 Wilmerton v. Sample.
This house had been occupied by a tenant of appellee. Appel-
lant had given this tenant notice to quit and surrender pos-
session to him. The tenant left and before appellant took
actual possession of the land appellee went and practically
destroyed the house and so mutilated it that it was not and
could not be occupied. He chopped down some of the doors
and windows. Mutilated the plastering, tore oflE the casings
to the doors and windows, tore oflE the weather boarding and
carried the doors of the house home with him and concealed
them in a dark cellar. He also chopped down a number of
fruit trees, grape vines, etc., about the house. For the injury
to the house and orchard appellant had him arrested for ma-
licious mischief, and for carrying away the doors and con-
cealing them, appellant had him arrested for larceny. On a
trial for malicious mischief appellee was acquitted and the
prosecutors nollied the indictment charging appellee with
larceny.
On the trial of this cause the evidence was somewhat con-
flicting upon the material questions involved, but as to the
weight or value of it we express no opinion, inasmuch as the
case must be remanded for another trial. The real and sub-
stantial question arose on the 6th and 7th counts, charging
appellant with malicious prosecution and false imprisonment
without probable cause. To justify a recovery under these
counts the proof must show both malice and want of prob-
able cause. Whether either of these necessary elements
existed in this case was hotly contested on Loth sides, and it
was earnestly denied by appellant. It was therefore impor-
tant that the law should have been accurately declared to the
jury. This we think was not done in several of the instnio-
tions. Twenty-two long and elaborate instnictions were given
for the plaintiff, and so far as we can see or are advised by the
record, exactly as submitted by counsel for appellee. Witli-
out stopping to criticise all this mass of miscalled instnic-
tions, we think that it must have impressed the jury more
like an argument from the court in behalf of the plaintiff,
than a simple, short and du*ect statement of the law as appli-
cable to the facts in evidence. Many of these contain cor-
Second District — May Term, 1890. 63
Wilinprton v. Sample.
■■'
rcct statements of the law, to which, standing single or in
company with a reasonable number, no objection could be
taken; but when correct propositions of law are repeated so
often and in so many different ways by the court as to bear
and assume the character of an argnment from the court, then
they are open to serious criticism and are obnoxious to any
correct practice in instructing a jury. But aside from this
objection going to the number, repetition and argumentative
character of the instructions given for plaintiff as a whole,
several of them were erroneous.
The 13th was as follows:
"If the jury believe from the evidence in this case that tlio
defendant knew, or had good reason to know, that the plaintiff
was in possession of the real estate and personal property
which it was charged he maliciously injui-ed, claiming to own
the same at the time the criminal charge was alleged to have
been committed, then there was no probable cause for the
prosecution."
This instruction is open to two objections. The jury
are told that if the plaintiff was in possession of the prop-
erty, claiming it, then there was no probable caoise for the
prosecution without reference to the fact whether appel-
lee was claiming in good or bad faith. The mere possession
and claim of ow^nership in property is not of itself conclusive
of his right to it as against a better or rightful owner, nor as
against such better title, authorizes him to destroy it. Such
possession and claim of ownership must be made in good faith
and in an honest and reasonable belief that it is his own prop-
erty and that he has a right to injure or destroy it. After
announcing this erroneous principle of law the court then
declares, as a matter of fact, that if such claim M'as made then
there was no probable cause for such arrest. Whether tlie
facts all considered or any of them furnished ground for
believing there was probable cause for the arrest, was for the
jury and not the court. This instruction was highly prejudi-
cial to tlic defendant, and well nigh took the case from the jury.
There was no denial that the plaintiff in that case was in pos-
session and claiming some kind of right at the time' of the
injury to the house and taking away the doors, but whether
I
64 Appellate Courts of Illinois.
Vol. 39.] Wilmerton v. Sample.
he had any reasonable ground for making sneh claim, and
whether, in the light of the undisjmted facts, such claim was
an lionest one, ought to have been referred to the jury. The
proof is clear, that he dismantled the house and chopped
down the orcjiard and vines. Whether such conduct by
appellee toward this property, which he now claims was his
own, and that he had a right to destroy it, was consistent with
an honest claim of ownership in Iiimself, ought to have been
submitted to the jury, and it was error for the court to take it
away from them and decide the question for tliem.
The 14th instruction is as follows :
" While the law is that a person is not guilty of the charge
of false imprisonment, where the arrest and imprisonment are
made under the color of legal process, yet, although the proc-
ess may have been issued regularly, by a competent officer,
the jury are instructed that the person who procures such
process, for the purposes of having another arrested and
imprisoned, and makes a false affidavit for that purpose, know-
ing it to be false, in order to obtain an advantage, or to force
' the person arrested, to surrender his possession, is guilty of the
abuse of process, and can not justify under such process."
This instruction assumes that appellant procured the proc-
ess for an unlawful use, and with intent to make an illegal
use of it, without any proof whatever that such was the fact.
It also assumes that appellee had made a false affidavit to
procure it instead of leaving that question to the jury.
The 15th and 17th instructions are both bad, because tliev
inform the jury that if the plaintiff was using the process for
the purpose of trying to get possession of the land where the
house and orchard stood, then such use of such criminal proc-
ess was illegal. There is no proof in this record that appel-
lant had any such purpose in suing out the process, and the
only use such instructions could have was to influence the
jury against appellant.
The 19th instruction is as follows:
"The jury are further instructed that if they find the
defendant guilty of malicious prosecution, as charged in the
plaintiff's declaration, they will, in assessing the plaintiff's
Second District — May Term, 1890. 65
Wilmerton v. Sample.
damages, allow him for sncli amount as tlicy think from the
evidence will compensate him for his loss of time, hisexpenses
in defending against the malicious prosecution, and any other
damages ho may have actually suffered, if any, and in addi-
tion tliereto, they may also allow such further sum as dam-
ages, as they may think is right, from the proof, as smart
money, or exemplary damages, not exceeding altogether the
sum of $5,000; and in estimating the damages, the jurj'
may take into consideration the standing of the parties
in the community, the physical 'and mental anguish that
he suffered on account of such arrest, imprisonment and pros-
ecution, if any, and the financial condition of the defendant
herein, and fix the plaintiff's damages at such sum as will not
only compensate the plaintiff for all his loss and suffering,
but will be a sufficient punishment to the defendant for his
malicious act."
This instruction allows appellee to recover for all his
expenses connected with the transaction without reference
as to whether or not they were necessary in his defense or
otherwise. This was too broad. It should have been limited
to his necessary and reasonable expenses, incurred by reason
of the alleged wrongful acts. The last clause of the instruc-
tion seems to be a direct declaration by the court tliat the act
of the defendant was malicious.
It is hardly necessary to add that such an instruction is
erroneous. The 2l8t instruction is as follows :
"The jury are instructed as a matter of law, that a person
who is in possession of property, claiming to be the owner of
the same, can not be guilty of malicious mischief in destroy-
ing such property, nor can he be guilty of larceny in regard
to such property."
What we liave said in discussing the thirteenth instruction
applies equally to this. It was error to give it. Exceptions
were taken by appellant to many other instructions given for
api-xjllee, but a discussion of all of them would lead us into
too much prolixity. Wliat has been said relating to them as
a wliole, and as to tliose we have specifically mentioned, will
Bulllciently indicate our views of tlie law. On behalf of the
You XXXIX 6
06 Appellate Courts of Illinois.
Vol. 39.] Wilmerton v. Sample.
defendant twenty instructions were asked, and nine of them
given and eleven refused. In connection with some of tlie
refused instructions it is proper to refer to certain evidence
offered by appellant. and refused by the court. It appears
from the record that appellant obtained title to that part of
the land on which the house stood through a sheriff's sale and
deed. The execution on which the sale was made was issued
after a year had elapsed from tlie date of the judgment.
A)>pellant offered this deed in evidence to show title in him-
self, but the court rejected the evidence. This evidence cer-
tainly tended to contradict the theory of appellee, that he
himself owned the house and might therefore dQstroy it.
The deed was good until it was vacated or set aside by a
court of competent jurisdiction (Hernandez v. Drake, 81
111. 43), and it was error to refuse it. It should liave been
permitted to go to the jury, and then the instructions asked
relating to the matter should have been given. Many of
the instructions asked for by appellant were also open to
the objection of being argumentative, and of being repeti-
tions of each other.
Before passing from the consideration of these instructions,
we can not forbear expressing our strong and emphatic disap-
probation of giving to the jury such a heterogeneous mass of
ill digested and multifarious instructions. Instead of instruct-
ing the jury upon the very few and very plain principles of
law involved in the case, they could scarcely fail to mislead
and confuse the jury. Such practice scarcely ever fails to
result in error. The court has ample power to protect
itself from such abuse and should not hesitate to do so.
Appellant again insists that the court erred in admitting in
evidence the record of the trial and acquittal of appellee on
tiie indictment formalicious prosecution, and also showing the
record of 7wl. pros, on the indictment charging appellee with
larceny.
This was also error on the part of the court. Appellant
was not bound by that judgment. He was not a party to it,
and although a prosecuting witness, he had no other connec-
tion with it. He had no control over the action of the court
V
Second District — May Term, 1890. 67
Wilmerton v. Sample.
or either of the parties. The introduction of the judgment of
acquittal in the malicious prosecution case, together with the
finding of the jury that appellant, the prosecuting witness,
liad acted maliciously in the prosecution, and a judgment
against him in co8t«, could not fail to have a most damaging
effect on him, before the jury, and no instruction of the court
that such judgment was introduced for the simple purpose of
showing that such suit was ended, could prevent the jury from
knowing that the prosecuting witness and appellant here had
been deliberately adjudged guilty of malicious prosecution in
another suit. The exhibition of the contents of that record
was wholly unnecessary to prove tlmt suit was ended. The
simple fact that the prosecution was ended was all appellee
had to prove, and there can be no possible objection to the
clerk or anybody else who knows the fact stating that that
suit was ended, and a final judgment rendered in it without
showing the record at large. This precise question has been
twice deliberately considered by our Supreme Court, and the
rule we have here followed declared by them to be the Jaw
in the case, and the introduction of the record expressly held
to be erroneous. Corbley v. Wilson, 71 111. 209; Skidmore v.
Brickor, 77 111. 164; and the same rule is laid down in
Wharton on Evidence, Sec. 777. In the case of Skidmore v.
Bricker, supra^ the record there shows that the circuit judge
who tried the case below expressly instructed the jury that
§uch record was introduced for the sole purpose of showing
that the prosecution was ended.
The ninth of appellant's refused instructions informed the
jury that if they believed from the evidence that appellant
acted in good faith and upon probable cause that he should be
acquitted. This was the law, and it was error to refuse it.
It appears that counsel for appellee were dissatisfied with
the abstract prepared by appellant, and have themselves pre-
pared a fuller abstract of the record, and now ask that costs of
it be taxed to appellant. We think there was no necessity for
this second abstract. The only useful purpose it served was
to show, if possible, a little fuller, the many gross and glaring
errors in this record. Appellant's abstract was full enough
68 Appellate Courts of Illinois.
Vol. 39.] Wilnierton v. Sample.
for that purpose, and we think, for all purposes a reasonably
fair abstract. The cost of the second abstract will be taxed
to appellee.
For the errors stated the judgment will be reversed and the
cause remanded.
Heveraed and remanded.
Lacey, J. I concur in the reversing and remanding of the
case but dissent as to the inile laid down in the opinion of my
brother Smith, that it was error to introduce the record of
the judgment of acquittal in order to show that the .prosecu-
tion had ended. I think the verdict and that part of the
judgment record that shows that the jury found that the pros-
ecution was malicious, ought not to have been admitted, for
that was unnecessary and it was incompetent to prove malice
in that way. But, in regard to the record showing the acquit-
tal and discharge of the plaintiff, I think it was not only admis-
sible but it was the only way it could be proved. It could
not be shown by parol as will be seen by the following author-^
ities: 2 Greenleaf on Ev., Sec. 462; 3 Phelps on Evidence,
568; Cole v. Hauks, 3 Monroe, 208; Dougherty v. Darsey,
4 Bibb. (Ky.); Long v, Rodgers, 19 Ala. 328; Katherman v.
Sittzer, 7 Watts, 191; Store v. Crocker, 24 Peck, 81; Com-
isky V. Breen, 7 III. App. 369, and many other cases might be
cited. I do not understand that there is any decision to the
contrary which holds that the contents of a record may be
proven by parol unless the one cited in our own statute be so
considered. If, then, the termination of the prosecution can
only be shown by the record, how can it be shown at all unless
the record of acquittal is introduced? I do not think that any
serious difficulty would arise by the introduction of such
record if the jury is instructed by the court as to its purpose.
I think there must have been something in the case decided
by the Supreme Court that made it improper in that case, but
1 can not see how such a.rnle could be held as a general one,
as it would violate one of the best known and fundamental
rules of law which is recognized by all courts of judicature.
In Anderson v. Friend, 85 111. 135, the Supreme Court held.
Second District — May Term, 1890, 69
Illinois Central Railroad Co. v. Slater.
that " want of probable cause is not shown by the acquittal
of the accused," but no objection was raised that the record
of acquittal was introduced in evidence to show the termina-
tion of the prosecution.
Uptok, J. I concur in the foregoing oy)inion of Judge
Lacey. The termination of tlie original prosecution was a
matter of record, and could only be shown by the record.
No injury could result to either party from its introduction,
and it is apprehended that the court could, upon its introduc-
tion and by an instruction to the jury, limit its application to
the single purpose of showing that prosecution was ended and
to that fact only. In that view it was proper to show by the
record tlwtt the prosecution complained of was nolle prossed
and so ended.
Illinois Central Railroad Company
Belford Slater, Administrator,
Railroads — Negligence of— Personal Injuries — Action hy Administra^
tor for Causing Death of Intestate — Ttco Brothers Killed in Same Acci-
dent— Recovery in Action for Death qf One no Bar to Recovery for Death
of Other.
Where two ini nor brothers'were both killed in the same accident, through
the alleged negligence of defendant, a recovery in an action brought to
recover damages for the death of one constitutes no bar to a recovery in
another suit for the death of the other, although the administrator of both
estates was the same person, and the heirs for whom he sued were the came
in each case.
[Opinion filed December 11, 1890.]
Appeal from the Circuit Court of Ogle County; tbe Hon.
William Beown, Jndge, presiding.
Messrs. W. & W. D. Baegb, for appellant
39 60
1398 aoo
39 09
&8 854
70 Appellate Courts of Illinois.
Vol. 39.] Illinois Central Railroad Co. v. Slater.
Suing as administrator of the estate of Arthur B. Slater in
the one case, and as administrator of the estate of Lewis W.
Slater in the other, does not make different plaintiffs, because
the plaintiff does not sue as the representative of the estate,
nor for its benefit, but only as the representative of the per-
sons named in the law, and for their benefit.
" The suit is brought by the personal representative for
the benefit of the persons named in the statute, not as
representing the estate, in such cases, but the persons for
whose benefit the remedy is given." 1 Woerner on the
American Law of Administration, Sec. 295, p. 628. " And
' where the executor or administrator of the deceased is
authorized or required to sue therefor, he is a mere nominal
party, who sues for the benefit of the parties named in the
statutes." Field on Damages, p. 515, Sec. 649.
According to the law of Alabama, the personal representa-
' tive may bring the suit in a case of this kind, and in the case
of Hicks v. Barrett, 40 Ala, 291, on page 293, the court say:
" Section 1938 of the code does not, in our opinion, contem-
plate a suit by an administrator as the representative of an
estate. It imposes upon an administrator a trust sej^arate and
distinct from the administration. Tliis trust is not for the
benefit of the estate, but of the widow, children or next of
kin of the deceased. The administrator fills this trust, but he
does not do it in the capacity of representative of the estate.
It is altogether distinct from the administration, notwithstand-
ing it is filled by the administrator. No judgment for costs,
in a suit under that section, could be properly rendered, to be
levied de botiis intestatis.^^
Under a statute like the statute of this State, the Supreme
Court of Kansas held that "The right of action created by
the statute is founded on a new grievance, viz., causing the
death, and is for the injuries sustained by the widow and
children or next of kin of the deceased, for the damages must
inure to their exclusive benefit. They are recovered in the
name of the personal representative of the deceased, but do
not become assets of the estate. The relation of the adminis-
trator to the fund when recovered is not that of the represent-
Second District — May Term, 1890. 71
lUinoifi Central Railroad Co. v. Slater.
ative of the deceased, but of a trustee for the benefit of the
widow and children or next of kin." Perrj v. St. Joe &
Western K. E. Co., 29 Kan. 420, 422.
'*The relation of the administrator to the fund, when
recovered, is not that of the representative of the deceased,
but he is a mere trustee for the widow and next of kin." Little
Eock & Ft Smith Ey. Co. v. Townsend, Adra., 41 Ark. 382,
387; Baker, Adm., v. Ealeigh & Gaston E. E. Co., 91 N. C.
308; 2 Thompson on Nee^ligence, 1294.
^' Where the personal representative brings the suit, his
position in respect to it and to the moneys recovered is
peculiar. The cause of action is not given in favor of the
estate proper. If it was, the moneys would be accounted for
with tlie other assets and, in case of an estate otherwise insolv-
ent, would be appropriated by the creditors. But the pur-
pose of these statutes is to make provision for members of
the family of the deceased, who might naturally have calcu-
lated on receiving support or assistance from the deceased,
had he survived." Cooley on Torts, 268.
'*Any njoney recovered by such an action is not to be
treated as part of the estate of the deceased; creditors do
not get any benefit from it." The City of Chicago v. Major,
18 111. 349; a & E. I. E. E Co. v. Morris, 26 Hi. 400. And
Chap. 70, Sec. 2, of the Eev. Stat, says this amount shall
be for the exclusive benefit of the widow and next of kin.
Tiien, according to the law in such cases the adminis-
trator represents the persons who are beneficiaries, and not
the estate, and brings the suit for them and not for it,
and since, in the cases under consideration, the beneficiaries
. are the same persons and have the same interests, and since
these persons and their rights are all represented by the same
individual who, as such representative, is seeking to obtain
damages for them in two cases against the same railroad com-
pany, arising from the same wrongful act, which is the sole
cause of action, it is quite certain that the parties are the same
in both these cases.
Nor does it make any difference to say that under the first
section of the statute the defendant is liable to an action if
72 Appellate Courts of Illinois.
Vol. 39.) Illinois Central Railroad Co. v. Slater.
death ensue, in case the injured party could liave maintained
a suit had he survived the injury, and therefore, in the
event of the survival, two suits, one by each boy, could have
been brought; for in tliat event the damages would belong
to two different persons; while in case of death the right
of action does not survive or inure to the estate, but a new
cause of action is created by the statute, not for the estate,
but for the benefit of the widow and next of kin, to whum
belong all the damages occasioned by the death. I
" This is a new cause of action given by this statute and
unknown to the common law." The City of Chicago v.
Major, 18 111. 349, 366.
" The statutes do not transfer the right of action which the
deceased would have had, but create a new right of action on
different principles." 3 Sutherland on Damages, 282; C,
B. & Q. R R Co. V. Harwood, 80 •111. 88, 92; Blake v. Mid-
land Ry. Co., 18 Q. B. 93; Barnett v. Lucas, Irish Kep. 6 C.
L. 247; Safford v. Drew, 3 Duer, 627.
"The cause of actiiai is distinct from the one which the
injured person, if surviving, would have had, and is based on
a different principle." Pierce on Riilroads (Ed. of 1881),
393.
Nor does it make them different plaintiffs or give the right
of two actions, to say that the persons entitled to the damages,
altliough the same, are beneficiaries of each of two boys,
instead of one; because the damages for the loss of the lives
of both belonged to these same beneficiaries, and could,
therefore, be recovered in one action, as well as the damages
for two buildings belonging to the same persons and destroyed
by the same wrongful act of the same railroad company.
" The law treats the value of the life lost as a species of
property." North Penn. R R Co. v. Robinson et al., 44
Pa. St 175, 179; Hilliard on Remedies for Torts, 612.
"The only injury from which a jury can estimate is a
pecuniary injury; that is, what have the widow and next of
kin lost> in a money view, by the death?" I. C. R R Co. v.
Weldon, Ad'm, 52 111. 290, 295; The City of Chicago v.
Major, 18 111. 349, 859.
Second Distjrict — May Term, 1890. 73
• Illinois Central Railroad Co. y. Slater,
''The fundamental principle is, interest reijptihlicce vt sit finis
litium — it is for the public good that there bean end to litiga-
tion." Herman on Estoppel, Sec. 52; Broom's Legal Maxims,
*298; Freeman on Judgments, Sec. 247; Warwick v. Under-
wood, 3 Head, 23S; Sclimidt v. Zahensdorf, 30 Iowa, 498;
KilheflEer v. Herr, 17 Sergeant & Eawle, 318, *319.
All actions for torts must be brought by the injured
persons. Those nominated in the statute are the only per-
sons of legal capacity to sustain actionable mjury in cases of
this character. They are entitled to the sole benefit of the
suit, and the action to recover the damages must be brought
by or for them. They are, therefore, either directly or
indirectly parties to the litigation. In the case at bar, and
the one in evidence, the beneficiaries are the same persons
and had the same representative. Belford Slater is the hus-
band of one, and the father of the others, and by or for them
and himself has brought these suits to recover damages for
the pecuniary injury sustained by him and them. All have
a direct interest in the subject-matter and in the result. Ho
had a right to introduce testimony, cross-examine wntnesses,
make objections, save exceptions, control the proceedings,
and pray an appeal from the judgment. Persons occupying
these relations to suits at law are parties. Greenleaf on
Evidence says:
'' Under the term parties, in this connection, the law
includes all who are directly interested in the subject-matter,
and have a right to make defense or to control, the proceed-
ings, and to appeal from the judgment. This right involves
also the right to adduce testimony and to cross-examine
witnesses adduced to the other side. Persons not having
these rights are regarded as strangers to the cause. But to
give full effect to the principle by which parties are held
bound by a judgment, all persons who are represented by the
parties and claim under them, or in privity with them, are
equally concluded by the same proceedings." " The gi-ound,
therefore, upon which persons standing in this relation to the
litigating party are bound by the proceedings to which he
was a party, is, that they are identified with him in interest;
74 Appellate Courts of Illinois.
Vol. 39.] Illinois Central Railroad Co. v. Slater.
and wherever tliis identity is found to exist, all are alike con-
clnded." 1 Greenlcaf on Ev., Sec. 523; Herman on Estoppel,
Sec. 593; Bigelow on Estoppel (2d Ed.), 46; Harmon et al. v.
Auditor of Public Accounts ei al., 123 111. 122.
" Privies. — Persons who are partakers, or have an interest
in an J action or thing, or any relation to another." 2 Bou-
vier Law Diet. 382; 5 Jacobs' Law Diet. 285.
It is not necessary that the parties in the two suits should
be precisely the same. It is sufficient if they are substantially
60. In the case of Ilanna et al. v. Head et al., 102 111. 596,
on page 603, the court hold that "It is sufficient for the
purposes of the rule relating to a former adjudication, when
relied on as an estoppel, that the parties be substantially the
same." Bennett on Lis Pendens, Sec. 375, says : " While the
general rule is that the suit must be between tlie same par-
ties, yet it is not necessary to the sufficiency of the plea or of
tlie defense that the parties should be precisely the same."
Starkie on Evidence says : "It is not essential tliat either tlie
]>arties or the form of action should be precisely the same if
they are substantially the same." 1 Starkie on Ev.,p. 192, *p.
220 (5 Am. from New English Ed.); Bigelow v. Winsor, 1
Gray, 299, on p. 302.
"Nor is the force of tlie rule broken by the fact that there
is a nominal, if there be no substantial, difference between
the parties." 2 Wharton on Ev., Sec. 780; Baker et al. v.
Cleveland, 19 Mich. 230, 235; Belden v. Seymour, 8 Conn.
304, on p. ^08; Livermore v. Uershell, 3 Pick. 33; Cal-
houn V. Dunning, 4 Dall. 120.
Moreover, the judgment in evidence is a bar to the suit,
because the same evidence will sustain both cases. The
wrongful act charged, the degree of care averred, the negli-
gence alleged and the beneficiaries named, are precisely the
same in these declarations. Both boys were sitting on the
same seat, in the same wagon, drawn by the same horses, on
the same highway, passing over the same railroad track, and
were killed at the same time, in the same place, by the same
alleged tortious act of the same defendant, and left surviving
them the same parents, the same brothers and the same sister,
Secoxd District — May Term, 1890. 75
Illinois Central Railroad Co. v. Slater.
and have the sanie representative suing for damages which
belong to all of tliem. The same persons saw the accident,
observed the management of the train, noticed the action of
the team and witnessed the conduct of the boys. The skill
and judgment of the boys in the care and management of the
team, the value of the loss of their lives, the character and
dis]K)8ition of the horses, the topography of the locality of
the accident, the grade of the track, the condition of the high-
way, the objects adjoining the right of way and everything
pertaining to this transaction, were all known to the same
people, who were or could have been produced by the same
process, and their entire knowledge of all these facts elicited
as fully by an examination on the trial of one as of both these
cases. It would be impossible to prove one, without at the
same time and by the same evidence, proving the other.
" The best and most unvariable test as to whether a former
judgment is a bar, is to inquire whether the same evidence
will sustain both the present and the former action." Free-
man on Judgments, Sec. 259.
"And what is the same cause of action, is whore the same
evidence will support both actions." 2 Addison on Torts
(Dudley and Baylies' Ed.), p. 1156; Hitchin v. Campbell, 3.
Wils. 304; Hitchin v. Canipbell, 2 W. Bl. 827; Bigelow on
Estoppel (2dEd.), p. 54 and note 1; Martin v. Kennedy,
2 Bos. and P. 71; Flanagin v. Thompson, 4 Hughes, C. C
421.
Messrs. J. W. ALLAHENand Dixon & Bkthea, for appellee.
The judgment in the former suit is not a bar to this one —
1. Because the matters in controversy here were not and
could not have been litigated in the other suit. They could
not have been litigated therein —
a. Because the plaintiffs were not the same. Belford
Slater was administrator of the estate of two distinct persons
in each ease; and, although the beneficiaries were the same,
this fact makes the plaintiffs by statute two distinct persons,
llie beneficiaries are not parties. Cooley on Torts, pp. 2^)3-
4-5; Conant v. GriflSn, 48 111. 410; 3 Lawson's Rights, Eemc-
76 Appellate Courts of Illinois.
Vol. 39.] Illinois Central Riulroad Co. v. Slater.
dies & Piac, Sec. 1020; XJ.Rj. & Tr.Co. v. Sliacklet, 119111.
232; Vol. 2, Pt. % Smith's Leading Cases, 8th Ed., p. 955;
3 Lawson's Eight, Remedies & Pr., Sec. 1025; Freeman on
Judgments, Sees. 156 and 163; Bigelow on Estoppel, p. 65,
278; Cooley on Torts, p. 274; 1 Perry on Trusts, Sec. 328.
K Because the subject-matter was not identical and the
same evidence would not sustain both suits. In each suit the
subject-matter was a right of action tliat two different per-
sons had, that survived to their legal representatives.
2. Because damages for the death of Lewis W. Slater
were not sought in the former suit; and where the subject-
matter and parties of the two suits are not identical it must
be shown that the matter in controversy was in fact litigated
in the first suit before the second suit will be barred. Hyde
V. Howes, 2 111. App. 140; Althorp v. Beckwith, 14 111. App.
628; Cromwell v. Sac Co., 4 Otto, 357.
8 Because in cases similar to this the courts have held
the second suit proper. C. C. & Cin. R. R. v. Crawford, 24
Ohio St., 631; Peake, Adm'r, v. B. & O. R. R., 26 Fed. Rep. 495.
4. Because the former suit should have been specially
pleaded in bar or in abatement. Freeman on Judgments,
Sec. 284; Vol. 2, Pt. 2, Smith's Leading Cases, 8th Ed., 945,
951-2-3; Miller v. Manice, 6 Hill, 114; Holm v. Ritter, 12
111. 80; Gould's Pleadings, p. 345; Edwards v. Hill, 11 111. 22;
Johnson v. Richardson, 17 111. 302; C, R. 1. & P. R R. Co.
V. Todd, 91 111. 70.
There was no error in giving or refusing instructions.
1. It is sufficient if the instructions, as a whole, present
the law fairly. T. W. & W. Ry. Co. v. Ingraham, 77 HI.
309; Chicago v. McDonough, 112 111. 85.
2. Defendant's refused instruction 18 was bad. It was
not necessary for the court to instruct the jury that the
engineer had a right to presume that a team will stop. C. &
I. R. R. Co. V. Lane, 22 N. E. Rep. 513; Railroad Co. v. Lee,
87 Hi. 454; Penna. Co. v. Frana, 112 111. 398; Terre Haute &
I. R. R. Co. V. Voelker, 22 N. E. R. 20.
3. Defendant's sixteenth refused instruction was bad. It is
not proper to instruct a jury that it is not want of ordinary
Second District — ^May Term, 1890. 77
Illinois Central Railroad Co. v. Slater.
care for a train to approach a crossing at usual speed; that
was a qnestiou for the jury. Penna. Co. v. Frana, supra; R, E.
I. & St. L. Ry. Co. V. Hiflmer, 72 111. 235; W., St. L. & P. Ry.
Co. V. Ilicks, 13 ill. App. 407; Same v. Neikirk, 15 111. App.
112; C, B. & Q. R.*R Co. v. Lee, 87 111. 454; J., B. & W.
Ry. Co.v. Hall, 106 111. 371; Railway Co. v. Kellam, 92 111.
245.
4. Defendant's twenty-seventh refnsed instrnction was
bad. The railroad company have no right to invite travelers
on a liighway into danger, and then charge them with negli-
gence. C. «feN. W. Ry. Co. V. Goebel, 119 111. 515; Rolling
Mill Co. V. Johnson, 114 111. 57; Penna Co. v. Frana, 8vp7*a,
The verdict was supported by the evidence, and was in
conformity with the instructions.
This court and the Supreme Court have so held on substan-
tially the same evidence and instructions. I. C. R R. Co. v.
Slater, 28 111. App. 73; same v. same, 21 N. E. Rep. 675.
No improper evidence was admitted.
It was proper to permit witnesses to say that if the boll
had rnng and whistle sounded they would have heard them.
C. & A. R R Co. V. Dillon, 123 111. 570.
Tliere was no ierror in the court refusing to wait for testi-
mony of the Shaffers.
Defendant had one day and a half to get them there, after
it knew they were needed. Defendant used no diligence.
The aflSdavit shows that it could prove anything by them; J
and the circumstances show that it did not want them there
or try to get them there. The court therefore did not abuse
its discretion.
Plaintiff's instructions were good.
They were the same as given in the other trial. I. C. R.
R Co. V. Slater, 28 111. App. 73; same v. same, 22 K E.
Rep. 575.
C. B. Smith, P. J. This was an action on the case brought
by Belford Slater, as administrator of the estate of Lewis W.
Slater, deceased, against the Illinois Central Railroad Company,
to recover damages under the statute for causing the death
78 Appellate Courts of Illinois.
Vol. 39.] Illinois Central Railroad Co. v. Slater.
of Lewis W, Slater, for the benefit of his next of kin. The
defendant pleaded the general issne. A trial was had result-
ing in a verdict against appellant for $1,350, npon which the
court, after overruling motions for now trial and in arrest of
judgment, gave judgment. Appellant nOw brings the record
here on appeal, and assigns errors on the record and asks this
court to reverse the judgment.
The errors assigned and relied upon are: 1. That this pro-
ceeding is barred by a trial and final judgment in former pro-
ceeding between the same parties concerning the same cause
of action. 2. That the court erred in giving and refusing
instructions. 3. That the verdict was against the instruc-
tions and the evidence. 4. The reception of improper evi-
dence and the refusal of proper evidence.
A bVief statement of the facts out of which this suit arises
is necessary to a correct understanding of it. Belford Slater
was the father of Lewis W. Slater and Arthur B. Slater. At
the time of the accident which resulted in the death of both
the sons, Lewis W. was thirteen years old and Arthur B.
about ten years old. On the 24:th day of August, 18SG,
Belford Slater sent his two boys to the town of Polo, a short
distance from their homo, with a two-horse wagon after a
barrel of buttermilk and some sugar. The team tliey drove
was a quiet one and one which the boys had been accustomed
to drive and handle. They had frequently before driven the
same team to town. On the morning in question these two
boys had driven to town and done their errand and were
returning home. At about 11 o' clock they reached the cross-
ing of the public highway upon which they were traveling,
with appellant's railroad, and while attempting to cross the
railroad track the passenger train on appellant's road collided
with the wagou and instantly killed both the boys. Separate
suits were brought to recover for the death of each one.
Belford Slater, the father, was appointed administrator of
each of them. The declaration in each case seems to be
exactly alike, except as to the names of the deceased. Each
declaration names the same beneficiaries, being the parents
and brothers and sisters of the deceased. The suit for caus>
Second District — May Term, 1890. 79
Illinois Central Railroad Co. v. Slater.
in«^ the death of Arthur B. was first tried. Upon the trial a-
judgment was recovered against appellant in the Circuit Court
for §1,000. The case w^as brought to this court on appeal,
and was afiirmed, and is reported in the case of the Illinois
Central Railroad Co. v. Belford Slater, Adm'r, etc., 28 111.
App. 73. The case was then taken to the Supreme Court
on writ of error and there the judgment of the Appellate
Court was affirmed. During the pending of that suit in the
various courts this case was permitted to await the final result
in that case.
The first count of the declaration in the case at the bar
was as follows:
First count alleges that August 24, 18S6, defendant pos-
sessed and operated railroad through county of Ogle over a
public highway running east and west on section line between
sections 4 and 9, T. 23, R S. That Lewis W. Slater was then
with all due care riding upon said highway in a wagon drawn
by two liorses, and with all due care and caution came upon
said railroad at said crossing, and while so riding with all duo
care across said railroad, at said crossing upon said highway,
in said wagon there, defendant then and there, by its servants,
so carelessly and improperly drove and managed its locomo-
tive engine and train by running the same at a high and
dangerous rate of speed, and by failing to keep a proper
watch for persons about to pass over said crossing, or to give
such signals as would apprise such persons using due care of
the approach of said locomotive engine and train, and by
failing and neglecting to stop or endeavor to stop said engine
and train so as to prevent injury to said Lewis W. Slater upon
said crossing, that by and through said negligence and improper
conduct of defendant in that behalf, said engine and train then
and there struck said wagon, and said Lewis W. Slater was then
and there throwm out of said wagon with force and violence
and against said engine, and was thereby then and there killed;
that said Lewis W. Slater left surviving Bel ford Slater, his
father, Ruth A. Slater, his mother, Albert G. Slater, Willis
A. Slater and fJoy J. Slater, his brothers, and Sarah M. Slater.
80 Appellate Courts of Illinois.
Vol. 39.] Illinois Central Railroad Co. v. Slater.
liis sister, and next of kin, who have been deprived of their
means of support and sustained damages.
As before stated the declaration in the other case was in all
respects the same, with the difference in the names of the
deceased onl3\ It will thus be seen that the two actions are
as near identical as it is possible for them to be. The parties
in both cases are the same. The beneficiaries are the same
and the facts in both cases out of which the cause of action
arose are the same.
It will thus bo seen that the question as to whether this
suit is barred bj a final judgment in the other is fairly raised,
by the conceded and admitted facts, and as clearly shown by
the record in the two cases. When tlie case was before us
before, it was earnestly contended that the evidence did not
support the verdict upon the charge of negligence on the
part of the defendant and due and proper care on the part of
the deceased child, Arthur B. Slater. We then gave the evi-
dence a careful and attentive study, and while it was conflict-
ing, still it was not so against the weight of evidence as to
justify us in saying the jury had erred in their conclusions.
The evidence in the present case we think is not substantially
diflferent from what it was in the other case. Nowjas then, it
was sharply conflicting upon the material and vital questions
involved, and we can not say the jury were not justified in their
finding. If they believed the witnesses for the appellee then
there was enough evidence to support their finding, and we
would not be justified in setting aside their verdict. They
are the judges of the credibility of the witnesses and of the
value of their evidence.
The question, however, pressed upon us with most earnest-
ness by counsel for appellant, and with apparent confidence, is
the supposed bar of the former judgment against the suit at
bar. Whether this defense can now be made successful
against this suit depends upon whether the two suits are in
all their legal aspects identical with each other. If they are,
then the bar is complete; but if the cases are not in legal
contemplation the same, then that defense must fail. Wo
are cited to a great many authorities by counsel for appellant
Second District — May Term, 1890. 81
Illinois Central Railroad Co. v. Slater.
upon the question before us and with which we have no con-
tention. The rules of law wliich define and declare similar
or identical causes of action between the same parties are so
well-known and familiar that a discussion of them would be
mere pedantry. The correct application of these welKknown
rules, however, to the ever-changing facts that present
themselves for solution is not always so easy. Where an
entire cause of action accrues growing out of a single act or
tort, the person injured must sue for and claim all his dam-
ages in the first suit, and failing to do so, he will not be again'
permitted to sue for and recover any more damages in a
second suit growing out of the same act, to the same plaintiff
and from the same tort feasor. But it is equally well settled
that many causes of action may gi'ow out of a single act or
tort, to as many individuals as suffer damages by the wrong-
ful act. We think the learned counsel for appellant in their
very able and exhaustive argument fail to recognize this dis-
tinction and apply it to the case at bar. There is a broad and
clear distinction between property in mere goods and chattels,
and the rights that accrue from injury to them to their ownei*s,
and the rights that arise outof the death of a human being to
those who are interested in the life and injured by the death of
such person. Had two or a hundred horses been killed belong-
ing to Belf ord Slater by this accident, then there would have
been but a single cause of action, and all damages must have
l)een recovered in the first suit, and the cases cited by appel-
lant would have been applicable. But instead of horses, in
which he had a right of property under the general law of
the land, it was his two children, in which he had no right of
property, while living (except to their services), nor in com-
mon law any right of property in them after death, nor any
cause of action accruing to him or anyone else by reason
of their death caused by the wrongful act of another. The
right to recover for tlie death of any person caused by the
wrongful act of another is conferred by the statute, and is
expressly limited by the terms of the statute to the widow
and next of kin of the deceased person. The action must be
brought by the personal representatives of the deceased per-
Yor. XXXIX 6
f
82 Appellate Courts of Illinois.
Vol. 39.] Illinois Central Railroad Co. v. Slater.
sons. Sec. 1 and 2 Rev. Stat. (S. & C. Chap. 70, p. 129(0-
Under this statute, upon the death of Lewis and Artluir
Slater (if caused wrongfully) a separate and distinct cause of
action accrued to the administrator for the use of their kin-
dred under the statute, not exceeding in value the sum of
$5,000. By no lawor process of reasoning that we know any-
thing of did the parents or brothers and sister of these two
boys have any joint and inseparable interest in their lives
while living, nor in the value of their lives when dead. The
law treats human beings as individuals, whether living or dead,
and treats their estates as separate and distinct, unless they
have commingled and joined their own property in life, but
even in tliatcase each individual must have separate adminis-
trators; joint letters of administration of the estate of two
or more persons, so far as we know or are advised, are wholly
unknown under our law. and never have had an v existence in th is
mi
State and are not recognized by our statute. The estate of
each person (except in partnership affairs) must have a sepa-
rate administration. Two or more persons may die at the
same time and from the same cause, and they may have the
same administrator, and we may carry the parallel further
and suppose their heirs to be the same j/Crsons, and yet the
same administrator must take out separate letters on each
estate and must give a separate bond in each case and the
administration throughout must be separate.
The fact that Lewis and Arthur Stater were brothers did
not make their estates joint in their death any more than if
they had been entire strangers to each other with their
estates descending to different persons. Nor does the mere
fact or accident that their father was administrator of both in
the least degree aid in making the estate of his two children
a joint estate, for any stranger might as well have been the
administrator of one or both of them without in anv wise
changing the legal rights of the beneficiaries or the separate
and distinct estates of each of the two boys. Had there been
separate administrators here, it would hardly have been con-
tended, we think, that the action of both must be joined, and
yet the case as it is is not different, for the administrator
Second District — May Teem, 1890, 83
Illinois Central Railroad Co. v. Slater.
does not sue in his own right; he is but the officer and agent
of the law; his personal relation to the deceased has no
legal significance whatever. Union Ry. & Transportation
Co. V. Shacklet, 119 111. 232.
Under our statute this remedy accrues to the administrator
only if the person when living would have been entitled to
* recover for the injury, had death not ensued, in his own
right. Now if we suppose that these two boys had suffered
personal injury only from the act complained of, and that
death had not ensued, it would hardly be contended seriously
that they must join in an action to recover for such injury.
On the contrary, it would be perfectly certain they could not
join in such actions, and for the reason that the injury to
each would have been his personal right of action, and it
seems to ns equally clear that the cause of action descended
separately and distinctly for , each one to his administrator,
and that such separate and distinct cause of action could not
be joined by the administrator. We are, therefore, of
opinion that the first suit and judgment therein was no bar
to the present one.
It is also insisted that the court erred in refusing some of
appellant's instmctions. On behalf of appellant the court
gave the jury twenty-five instructions. We think after a
careful examination of all these given, the appellant has no
grounds for complaint. They seem to cover every possible
phase of the case in a most ample and exhaustive manner,
and we think the defendant had the full benefit of every legal
proposition involved in the case clearly and distinctly
declared to the jury by the court. The legal propositions
arising upon the facts in the case are few and simple and we
think they were all covered by the instructions given for
appellant The instructions given for the plaintiff seem to
be the same as given on the other trial and were approved by
this and the Supreme Court. A separate discussion of all
the instructions would lead to too mnch prolixity. It is
also objected that the court refused to prolong the trial and
wait for the arrival of the witnesses appellant desired to
examine, after the evidence was closed. No sufficient
84 Appellate Couets op Illinois.
Vol. 39.] Illinois Central R.iilroad Co. v. Slater.
reason is shown why the witnesses were not at the trial at the
proper time and the court was not bound to wait for absent
witnesses, after the evidence was closed. It was a matter in
the discretion of the court.
It was also alleged as error that the court improperly re-
fused several instructions asked by the defendant. The court
refused Nos. 18, 21, 25 and 27, 35, 36 and 37. These instruc-
tions, we think, are open to the objection that tliey state to
the jury that the existence of certain facts therein named, if
shown by the proof, amount to acts of negligence on the part
of the deceased, or to the exemption from tlie charge of neg-
ligence on the part of the engineer, instead of leaving it to the
jury to say whether such acts or facts, if shown by the
evidence, established the charge of negligence against the
deceased or exonerated the engineer from the charge of neg-
ligence. The existence and proof of negligence is one of fact
and not of law, and instructions which find and declare negli-
gence from the existence of certain acts or facts usurp the
function of the jury, and are therefore erroneous. Penn. R.
R. Co. v. Frana, 112111.398. This rule has a single excep-
tion, and that is where the negligent act charged is so gross
and palpable that the law will treat it as negligence per se.
But in such case the negligent act must be so clear and con-
clusive that no rational argument could be made against it.
The alleged acts of the negh'gence on the part of the deceased
in this case does not fall within that exception. But while
the court refused appellant's 18th and other instructions defin-
ing what acts would relieve the engineer from the charge of
negligence, the court gave the 19th, covering the same prin-
ciple. And to the same effect are a number of the other
instructions given on motion of appellant The 21st, 25th,
27th, 35th and 36th instructions were properly refused for the
same reason. The 27th instruction was rightfully refused
because it referred only to the fractious character of the team
in running upon the track, without any reference to the
alleged negligence of the defendant in running its train, and
makes the whole case depend on whether the team became
unmanageable and ran upon the track. The 87th instruction
Second District — December Term, 1890. 85
Allison Y. Maley.
was properly refused becanse it told the jury that the former
suit, brought for the death of Arthur B. Slater, was a bar to
this action, which we have heretofore held is not the law.
It is lastly urged that the court erred in permitting certain
witnesses to testify for appellee that they did not hear a bell
rung nor a whistle sounded, and that in their opinion if such
bell had been rung or whistle sounded they could and would
liave heard them. This was not error. This class of evi-
dence is expressly recognized and held proper in Railroad Co.
V. Siltman, 88 III. 629, and Chicago & Alton R. R. Co. v.
Dillon, 123 111. 570.
After a patient and careful study of this entire record we
liave been unable to find any substantial or reversible error,
and the judgment must be affirmed.
Judgment affirmed.
Elizabeth A. Allison
V.
Margaret F. Maley et al,
JuHsdiction—Bill in Equity— Remedy at Law— Discretionary Power
to Dismiss Bill on Courtis Own Motion.
The power possessed by a court of equity to dismiss a bill on its own
motion, for- want of jurisdiction, on the ground that the parties have a com-
plete remedy at law. must be exercised with a sound discretion, and where
to dismiss a bill on this ground would impose great and unnecessary hard-
ship upon the parties it should not be done.
[Opinion filed December 22, 1890.]
In'erboe to the Circuit Court of Warren County; the Hon.
John J. Glen, Judge, presiding.
Messrs. Porteb & MaoDill, for plaintiflE in error.
86 Appellate Courts of Illinois,
Vol. 39.] Allison v. Maley.
Mr. A. p. Hutchinson, for Charles M. Brownlee and
Kalph P. Brownlee, defendants in error.
Messrs. Griek & Stewabt, for Alfred H. Rockwell, defend-
ant in error.
Per Curiam, This was a bill filed by appellant against
appellee and others, seeking an accounting. It appears that
Margaret F. Maley was appointed guardian of appellant when
she was about six years old, and gave a bond in the sum of
$10,000 for the faithful performance of her duty. After
appellant became of age, she had her guardian cited to
appear before the County Court, where after a hearing she
was found to be indebted to her ward in the sum of $800.
Thomas Paxton, Alfred Rockwell and Natlianiel Brownlee
were sureties on this bond. The amount found due appellant
not having been paid by appellee, this bill was filed against
appellee Maley, Alfred H. Rockwell and Thomas Paxton, and
the heirs of Alfred M. Brownlee, praying for an accounting
as to the amount due appellant from her guardian, and for
a decree against her and sureties, compelling them to pay
appellant the amount found due. The bill averred that Mar-
garet F. Maley and Thomas M. Paxton were insolvent, and
that Alfred H. Rockwell had been discharged in bankruptcy-
The bill further averred that A. EL. Brownlee had died and
left his sons Charles M. and Ralph P. Brownlee as his heirs,
and that these two sons had inherited from their father a
large amount of real and personal estate, subject to the pay-
ment of his debts and legacies under his will. Maley and
Paxton were defaulted. Rockwell set up in his answer his
discharge in bankruptcy. Charles and Ralph Brownlee an-
swered the bill, and a replication was filed. The Brownlees
denied their liability.
The bill was filed December 11, 1889. The cause was heard
at the May term, 1890, and after full argument had and con-
sideration by the court the court dismissed the bill at cost
of complainant for the reason stated in the decree "that
the court had no jurisdiction in the cause, and because the
' Second District — December Term, 1890. 87
Allison V. Maley.
complainant has an adequate and complete remedy at law."
From that deci'ee complainant sued out this writ of error.
The only question before us is, whether the court erred in
dismissing this bill for want of jurisdiction. The record
shows that the defendants did not demur to the bill, nor deny
the jurisdiction of the court in their answer, nor in any other
manner whatever question the jurisdiction of the court, but
on the contrary answered to the merits and went to trial and
submitted themselves to the jurisdiction of the court. After
having answered to the merits and gone to trial and without
in any manner denying the jurisdiction of the court on the
hearing below, it is now too late for the parties to raise that
question in this court for the first time. City of Chicago v«
Cameron, 22 111. App. 91; Stout v. Cook, 41 111. 447; Magee
V. Magee, 51 111. 500; Seminary v. Gage, 103 III. 175. It is,
however, insisted that the court on its own motion may
dismiss the bill at any stage of the proceedings when the
court finds it has no jurisdiction or that there is an adequate
remedy at law. This contention finds support in Kimball v.
Walker, 30 111. 482, and in Gage v. Sclimidt, 104 111. 106. In
Kimball v. Walker, while the court expressed the opinion
that the trial court might have exercised tliat power, still it
was not done, nor did the Supreme Court exercise that right,
but kept the case and decided it upon its merits, and stated as
a reason therefor that if the jurisdiction was denied and the
case dismissed, it might result disastrously to the complainant
on accoimt of the running of the statute of limitations against
a suit at law. In Gage v. Smith, the remark was thrown in
incidentally in the opinion, and no such power was exercised,
and the court there held the parties themselves are estopped
to raise that question for the first time in the Supreme Court,
and the court there again retained the case and disposed of it
upon its merits. At most, as we understand the decisions of
the Supreme Court upon this question, this power of the
Circuit Court to dismiss a bill on its own motion for want of
jurisdiction is a discretionary power, and ought always be
exercised with a sound judicial discretion, and like other
discretionary powers, may be reviewed w*here abused or
improvidently exercised.
88 Appellate Courts of Illinois.
Vol. ^9.] Johnson v. Stephenson.
We are of opiDion that the court in tliis case erred in dis-
missing this bill at the time and under the circumstances
existing at the time; the bill had been pendingfor over a year.
The parties had been to the expense of getting ready and pre-
paring for trial, and had, in fact, tried the case, and it was
ready to be disposed of on the merits. Neither party was
asking the court to exercise this arbitrary power, but both
asking a decree on the merits. The consequence of dis-
missing the bill was likely to amount to a denial of the com-
plainant of any remedy at law on account of the statute of
limitations being setupagaiust her in a suit at law. There was
no kind of necessity of turning the parties out of the court
when they were all willing to submit to its lurisdictiun, and
again involving them in long and expensive litigation in a suit
at law^, even if they did have a full and coinj)leto remedy
therein, and even if it be conceded they should have brought
suit at law in the first instance.
We think it was the duty of the court to have decided the
case on its merits at that time, and for that error the decree
will be reversed and the cause remanded, with directions to
the court to refer the cause to the master to state an account
between the parties, and report this finding to the court, and
that upon such report being made the court shall then hear
the cause upon its merits upon such report, and render such
decree as the evidence and the law shall require.
lieversed and remanded.
L. J. Johnson et al.
V.
C. M. Stephenson and J. R. Wilson.
H^ghicays — Jxiriadiciion of Commissioners in Laying Out RoadStaiu-
tory notice.
Second District — December Term, 1890. 89
Johnson v. Stephenson.
Compliance with the statutory requirements as to the giving^ notice, by
highway commissioners, of a hearing upon a petition to lay out a new road,
is jurindictional, and evidence that notices were properly posted must be
preserved. •
[Opinion filed December 22, 1890.]
In error to the Circuit Court of Woodford County; the
Hon. S. S. Page, Judge, presiding.
Messrs. Newell & Kennedy, for plaintiffs in error.
Mr. W. L. Elwood, for defendants in error.
JF^er Curiam. This is a writ of eiTor prosecuted from a
judgment of the Circuit Court, quashing certain proceedings
had before liighway commissioners to lay out a road. The
highway commissioners refused the prayer of the petitioners
to lay out a certain road, and dismissed the petition because
there were not a sufficient number of petitioners, and because
the road asked for was not a public necessity. Upon the
hearing of the petition the commissioners made and signed
the following order, viz.:
"At a meeting of the commissioners of highways, held in
pursuance of a notice to hear reasons for and against granting
the prayer of the within petition, it was decided by us to
refuse the prayer of said petition for the following reasons :
Ist, because said petition is not signed by the required number
of land owners. 2d, because the establishment of the road
proposed is not a public necessity." From this order an
appeal was taken to three supervisors, under the statute, by
certain of the petitioners. Upon a hearing before the three
8upervisoi*8 the order of the highway commissioners was
reversed in all things, and the three supervisors ordered tlie
road opened. The proceedings had before the highway
commissioners and three supervisors were brought before the
Circuit Court for review upon a writ of certiorari. Upon
the hearing the court quashed the proceedings of the three
supervisors laying out ^id road.
A
90 Appellate Courts of Illinois.
Vol. 39.] Johnson v. Stephenson.
_ .. _ _ ,
This appeal is prosecuted from that order. In the view we
take of the ease it is necessary po notice but a single question.
The statute, Cha|>. 130, Sec. 33, requires the highway com-
missioners, before proceeding to hear the petition, to give
notice of the time and place of hearing by posting up at least
live notices in live of the most public places in the township
at least ten days before the hearing, fixing the time and place
of hearing. These notices are jurisdictional and they must
be posted as required before the commissioners have any
authority to act. The evidence that these notices have been
given as required by the statute must be preserved either by
tiling the notices with the proof of service with the record of
the proceedings, or the commissioners must recite that fact in
their order in such manner that the court can see that the
notices required by the statute were given for the full time
and in the manner required. In the case at bar the only
evidence preserved in the record showing that such notices
were given is set out in the order of the highway commis-
sioners, which we have given in full above. It will be seen
from an inspection of this order that it fa lis far short of being
a compliance with the statute, and is, therefore, fatally defect
ive to confer jurisdiction, which the record must show
affirmatively. Commissioners v. Harper, 38 111. 103; Corley
v. Kennedy, 28 111. 143; Shiukle v. Magill, 58 111. 422; Frizell
V. Kogers, 82 III. 109.
The record failing to show jurisdiction on the part of the
commissioners to act, everything they did was a nullity, and all
proceedings by the supervisors were equally void, and the
Circuit Court committed no error in quashing them.
But it was error to tax the costs of the suit to the three
supervisors. Tiiey were not necessary parties to the suit and
have no personal interest in its result. They did not live in the
township and have acted in their offcial capacity in hearing
the appeal. It would be most unjust to tax them with the
costs of litigation which in no manner concerned them.
Alexander v. Rubensam, 12 111. App. 120.
So much of the judgment as taxes costs to the supervisors
must be reversed, but in all other respects the judgment is
affirmed. Affirmed in part a?id reversed in part.
Second District — December Term, 1890. 91
Bailey v. Ferxason.
Daniel Bailey
V.
Robert Ferguson,
Landlord and Tenat^ — Forcible Detainer — Abandonment by Tenant
Subsequent to the Bringing of Suit — Costa.
1. Lands can not be leased by parol for more than one year.
2. The construction of a written contract should be left to the court.
8. In an action of forcible entry and detainer this court holds, in view
of the evidence, that the judgment for the defendant can not stand.
[Opinion filed December 22, 1890.]
Appeal from the Circuit Court of Boone County; the Hon.
Charlks Kkllum, Judge, presiding.
Messrs. Robert Rew and John B. Lyon, for appellant.
Messrs. R. W. Wright, C. E. Fuller and W. C. DeWolf,
for appellee.
Per Curiam. This is an appeal from a judgment of th^ Cir-
cuit Court of Boone County. This proceeding was to recove-
the possession of the farm of appellant from his tenant, Robert
Ferguson, through the agency of a forcible entry and de-
tainer proceeding. The suit was originally begun before a
justice of the peace, and was appealed to the Circuit Court?
where a trial was had resulting in a judgment for the defend-
ant. The record shows that appellant leased his farm to
. appellee by parol for one year from the 12th day of November,
1888, to the 12th day of November, 1889. On the 23d day
of July, 1889, appellant gave appellee written notice to vacate
the farm on the 12th day of November, 1889, On the 21st
of October, 1889, appellant entered into a written agree-
ment with one Mauson to farm the same land which appellee
occupied on the shares, Mauson to receive a certain share of
the gi*ain and stock raised. When the 12th of November
92 Appellate Courts of Illinois.
Vol. 8-^.] Bailey v. Ferguson.
arrived, appellee did not vacate the farm. On the 12th of
November appellant went to his farm and demanded poBsessioni
but appellee refused to allow him to enter. On the 22d of
November appellant brought suit against appellee for tiie pos-
session of the farm in forcible entrv and detainer, and notice
was served on appellee; but on the 27th of November
appellee left the farm, before the time 6f the trial. On the
day set for trial appellee went before the justice and de-
fended tlie action, but being defeated, took an appeal to the
Circuit Court. On the trial there appellant was defeated, and
he appeals here and assigns errors.
In the view we take of the case, an elaborate discussion
will not be necessary. The onh' important question involved
requiring our consideration is, whether the contract made be-
tween appellant and Mauson was a lease or a mere contract to
have his landiarmed for him upon certain terms therein named.
The contract or agreement between these parties does not
purport to be a lease, but is described as a contract, and
at great length defines the terms and conditions upon wliich
the farming was to be done. We think that this contract was
not a lease within the meaning of the law, so as to entitle the
tenant to the exclusive possession of the farm, and be the
owner of the crops raised. It amounted at most to a partner-
ship arrangement for carrying on the farm.
But even if this agreement should be treated as a technical
lease, that can not help appellee, for the proof tends to show
that when this new lessee (if he be such) went and demanded
possession of appellee he was refused possession, and that
Mauson then abandoned and surrendered his lease to appel-
lant, and had not claimed any rights in the premises until
after the suit was brought and after appellee left the premises.
At all events the new tenant did not get possession but
declined to have anything to do with the farm until appellee
and appellant got the dispute settled up; so that when this
suit was brought and when appellee left the farm, appellant
was clearly entitled to the exclusive possession of his farm,
and no question could arise about his new tenant, Mauson,
being entitled to the possession of the farm, for he had tern-
Second District — May Term, 1890. 93
Piper V. Headlee.
porarilj abandoned his lease or his contract and refused to
have anything to do ^with it until appellant and appellee had
settled it. Appellee can not now insist that the relation of
landlord and tenant should exist between appellant and
Mauson when they were both willing, and in fact had both
abandoned tlie contract for the time being, by reason of the
refusal of appellee to surrender possession. This being the
situation of the parties at the time this suit was commenced,
it left appellee on his own statement without any defense to
this action, and it is very clear that appellant was entitled to
recover for his costs at least, notwithstanding appellee had
abandoned the farm, and thereby recognized appellant's right
to the possession.
An attempt is made to show that appellee was a tenant
from year to year by parol for three years. This can not be
under our statute. No lease can be made by parol of lands
for more than one year. The court also erred in submitting
to the jury in one of the instructions for appellant to say
whether the written contract was or was not a lease. It was
the duty of the court to construe the contract, and not leave
it to the jury.
For the errors indicated the judgment is reversed and
the cause remanded.
lieversed and remanded.
Hiram H. Pipee
V.
William N. Headlee et al.
Morfffftges — Foreclosure — Misdescription — Vendor^ s Lien — Agency —
Jurisdiction — Freeholds-Evidence,
1. The rule that the payee or indorsee of negotiable paper takes it free
from conflictinflr equities between the lunkers or obligpees of which he had
no notice, applies to equities between principal and surety, as well w oth^r
equities, and if the payee has no notioe of suretyshipi there is no equitable
94 Appellate Courts of Illinois.
Vol. 39-1 Piper v. Head lee.
obligation to protect the surety reetinff on bim; he is justified in treating
theui both as principals.
2. The entering satisfaction of a mortgage and taking a new one, when
designed by the parties to be a continuation of. the first mortgage, is not a
satisfiiction but a continuation thereof, and as to an intervening judgment
creditor of the mortgagor does not give him priority.
3. Upon a bill filed to foreclose a mortgage this court holds, in view oi
the evidence, certain property in question having been misdcscribed, a new
mortgage being given and the rights of minors involved, that the decree
of the trial court can not stand, and remands the cause with directions as
to the decree which should be entered herein.
4. In the case presented, this court hold that the motion of appellees to
dismiss the appeal upon the ground that a freehold is involved can not be
sustained, the question being as to the exi^tence and priority of mortgage
liens.
[Opinion filed December 8, 1890.]
Appeal from the Circuit Court of Bureau County; tbe
Hon. G£0£0£ W. Stipp, Judge, presiding.
Messrs. Kendall & Lovejot, for appellant.
Tliis court has jurisdiction. Wo appealed only from that
part of the decree relating to the priority and enforcement of
liens. Walker v. Frichard, 121 111. 227; Malaer v. Hud-
gens, opinion of Baker, Judge, 122 N. E. Hep. 586; Land
Co. V. Peck, 112 III. 432.
When Mrs. Headlee joined her husband in executing the
mortgage dated September 15, 1885, she knew that her husband's
interest in the Inks 80 had been mortgaged to Piper to secure
the $3,000 borrowed of him to pay for such interest. Piper's
equity to have such interest applied in satisfaction of said
$3,000 was prior in time to her equity, if any she had, to
have such interest applied in satisfaction of the mortgage of
1885. Taking the new notes and mortgage in 1886, for the
same $3,000, did not subordinate his equity to that of her
children, as the new mortgage was given and taken on the
same land intended to be conveyed by the old mortgage, and
for the purpose of correcting the misdescription in the old
mortgage. Curtis v. Koot, 20 111. 57; Campbell v. Trotter,
Second District — May Term, 1890. 95
Piper V. Headlee.
100 III. 281; Janscn v. Grimshaw, 125 III. 476; Donlin v.
Bi-adley, 119 III. 423.
Admitting that, by Mrs. Headlee executing the notes and
mortgage dated October 11, 1882, to secure the $3,000 borrowed
of Piper, the twenty fifty -second parts of the Inks 80 occupied
the position of surety for the payment of such $3,000; yet,
Piper being ignorant of the fact that she had paid any part
of the purchase money therefor, the taking of the new
notes for the same debt, and a new mortgage on the land
intended to be conveyed by the first mortgage, did not release
such twenty fifty-second parts from the payment of such
$3,000. Only in a court of equity could defendants in cross-
bill enforce any claim to the Inks 80, and if they ask equit3^,
they should be required to do equity. Tlie legal title is in
Piper. Nfimcewicz v. Ghan, 3 Paige Oh. 651; Same case on
appeal, 11 Wend. 323.
Mr. Joe A. Da^vis, for infant appellees.
Appellant should have taken an appeal to the Supreme
Court. A freehold is involved within the meaning of the
statute. Sec. 89, Chap. 110, K. S.; Monroe v. Van Meter, 100
111. 347; Sanford v. Kane, 127 111. 591.
A freehold can be involved in a case made by a cross as
well as by an original bill. C, B. & Q. E. R. Co. v. Watson,
105 III. 217.
Appellant had notice of the equitable rights of Grace A.
Headlee in the land in controversy. Jacob Miller, who acted
as one of the agents of Piper in making the $3,000 loan on
October 11, 1882, knew that Grace A. Headlee contributed
$2,000 toward the purchase price of the land, and knew that
the deed from Inks and wife, of date October 11, 1882, was
made to Wm. N. and Grace A. Headlee.
Notice to an agent is notice to the principal. Williams v.
Brown, 14 111. 200; Whitney v. Burr, 115 111. 289; Boyd v.
Yerkes, 25 111. App. 528.
Tlie possession of Grace A. Headlee until her death, and
the possession of the infant appellees afterward, was sufficient
to charge appellant with notice of their equitable interest in
96 Appellate Courts of Illinois.
Vol. 39.] Piper v. Head lee.
the land. Williams v. Brown, 14 111. 200; Coari v. Olsen, 91
III. 273; Whittaker v. Miller, 83 111. 381; Ford v. Marcall,
107 111. 136; First National Bank v. Kurtz, 22 111. App. 213.
Grace A. Headlee joined with her husband in the execution
of the mortgage of date October 11, 1882, and also the one of
date September 15, l&So. Piper had knowledge of this fact.
This was sufficient to charge appellant with notice of all the
rights, legal or equitable, of Grace A. Headlee in the land.
Bradshaw v. Atkins, 110 111. 323.
By executing the release Exhibit "R," and surrendering up
the notes secured by the mortgage of date October 11, 1882,
Piper released said land in controversy from the lien of said
mortgage. Seymore v. Mackey, 126 III. 341; Battenhausen
V. Bullock, 8 111. App. 319; Mattix v. Weand, 19 Ind. 151.
The burden of proof is on tlie person who would impeach
the cancellation of a mortgage to show that it was released by
fraud or some mistake of fact. Jones on Mortgages (2d Ed.),
Vol. 2, Sec. 966; Battenhausen v. Bullock, 8 111. App. 319.
The discharge of a mortgage and the surrendering up of
the notes secured thereby and the taking of new notes and a
new mortgage will let in intervening liens, so that they will
liave priority over the new mortgage. U. S. v. Crookshank,
1 Edw. (N. Y.) 233; Dingmau v. Eanrdall, 13 Cal. 512; LaB-
salle V. Burnett, 1 Black (Ind.), 150; Jones on Mortgages,
Vol. 2 (2d Ed.), Sec 927.
To entitle one to relieve on the ground of mistake, it must
be a mistake of fact and not of law. Jones on Mortgages
(2d Ed.), Vol. 2, Sec. 969; Goltra v. Sanasack, 53 111.456.
If the principal debtor acquires the mortgage, this will
discharge the surety. Jones on Mortgages (2d Ed.), Vol. 1,
Sec. 114; Fitch v. Cotheal, 2 Sandf. (N. Y.) Ch. 29.
A wife who has mortgaged her estate for her husband's
debt is in the position of a surety. Jones on Mortgages (2d
Ed.), Sec. 114 and 942; White and Tudor's Leading Cases in
Equity (from 6th Ed.), Part 2, Vol. 2, star page 1152; Bank
of Albion v. Burns, 1 Sickles (N. Y), 170.
If a mortgage is made to secure the debt of a husband,
the creditor is affected with notice of the wife as fiui*ety, and
Secoitd District — May Term, 1890. 97
Piper V. Head lee.
he is bonnd thereby. Jones on Mtg. (2d Ed.), Vol. 1, Sec.
114 and 115; Bank of Albion v. Burns, 2 Lms. (N. Y.) 52;
S. C, 46 K Y. 170; Smith v. Townsend, 25 N. Y. 479;
Loomer v. Wheelwriglit, 3 Sandf. (N. Y.) Ch. 135.
Any extension of time witliout consent of surety will
release hira. Jones on Mtg. (2d Ed.), Sec. 114 and 942;
Dodgson V. Henderson, 113 111. 362; Myers v. First National
Bank, 78 111. 258; Wait's Act. and Def., Yol. 5, 240; Gifford
V. Allen, 3 Met. 255; HuflFman v. Hurlbert, 13 Wend. 375.
A creditor having given a release for a debt can not reserve
the right to proceed against the surety, whether the release
is legal or equitable. White and Tudor's Leading Cases in
Equity (from 6th Ed.), Part 2, Vol. 5, star page 1113 and
1134; Nicholson v. Revill, 4 Ad. & Ell. 675; Kearsey v.
Cole, 16 Mees. & W. 136; Webb v. Hewitt, 3 K. & J. 438.
A surety has a right to stand upon the very terms of his
contract; any alteration without his consent will extinguish
his liability, even though it be for his benefit. It destroys
the identity of the contract and it ceases to be the contract to
which he became a party. Wait's Act. & Def., Vol. 5, 231
and 226; Dodgson v. Henderson, 113 III. 360; Miller v.
Stewart, 9 Wheat. (U. S.) 680.
Presumptions and eqnities are never allowed to enlarge or
in any degree to change their legal obligations. Wait's Act
& Def., Vol.5, 189; Stull v. Hance, 62 111. 52; Leggett v.
Humphreys, 21 How. (U. S.) 66] Ludlow v. Simond, 2 C. C.
E. (N. Y.) 1.
If a new surety is substituted in place of the old one, this is
a discharge, even though the new one proves worthless.
Wait's Act & Def., Vol. 5, 233; Newman v. Hazelrigg, 1
Bush (Ky.), 412; Howe v. Buffalo K. R, 37 N. Y. 297;
Wolf V. Fink, 1 Pa. St. 435.
If a note is paid by a new note, it can not be kept alive as
collateral to the new one. Wait's Act. & Def., Vol, 5, 229;
Barnett v. Reed, 51 Pa, St, 190; Andrews v. Marrett, 58 Me.
539.
Where a principal debtor has mortgaged his own property
for his debt, his property must first be exhausted before the
You xxxiz 7
98 Appellate Courts of Illinois.
Vol. 39.J Piper v. Headlee.
creditor can have recourse to that of the surety. Joncis on
Mtg., Vol. 1, Sec. 114; Wilcox v. Tood, 64: Mo. 388; Loomer
V. Wheelwright, 3 Sandf. (N. Y.)Ch. 135; Wright v. Austin,
56 Barb. (N. T.) 388; White & Tudor's Leading Cases in
Equity (from 6th Ed.) Part 2, Vol. 2, star page 1153.
Upon the same principle, where a wife joined with her hus-
band in mortgaging her estate, and the husband's property
was also mortgaged to secure the same, she will be entitled
to have her husband's estate sold first to pay the debt, not
only as against him, but also as against a second mortgagee of
her husband. White & Tudor's Leading Cases in Equity
(6th Ed.), Part 2, Vol. 2, star page 1153; Aguilar v. Aguilar?
5 Madd. 414.
Lacet, J. Tlie first question presented here is a motion by
appellees to dismiss the appeal because, as they allege, there is
a freeliold involved. Under the facts of this case we are unable
io see that there is any freehold involved, although we can
not feel perfectly sure that such is not the case, so variant
have been the decisions of the Supreme Court on the ques-
tion. In C.,B. & Q. R. R v. Watson, 105 111. 217, it was
held that '* a freehold is never involved unless the primary
object of the suit is the recovery of a freehold, and the judg-
ment or decree will, as between the parties, result in one party
gaining and the other losing his estate." In the case of Sanford
etal. V. Kane, 127 111. 591, appealed from this court, that rule
was disapproved and the decree of this court in that case
reversed because, as the court held, there was a freehold
involved. In the latter case the rule was laid down that a
freehold is involved " where the title to a freehold is so put
in issue by the pleadings that the decision of the case neces-
sarily involves a decision of such issue, although the judgment
or decree does not result in one party gaining and the other
losing the estate."
In Kerchoflf v. Union Mutual Life Ins. Co., 128 III. 199i
where the complainant alleged the execution of a deed con-
veying certain real estate to the defendant^, coupled with an
oral agreement that the coniplainant should bo permitted to
Second District — May Term, 1890. 99
Piper V. Headlee.
redeem two of the lots conveyed upon certain prescribed
terms and prayed that ho be let in to redeem from such abso-
lute deed on its face by paying the alleged stipulated sum, it
was held that no freehold was involved. A similar holding
was had in Lynch v. Jackson et al., 123 111. 360. Hollings-
worth V. Koon etal., 113 111. 443; see same case, 13 111. App.
158. In Kerchoff v. U. M. L. Ins. Co., sxipra^ the court say:
"Unfortunately our rulings have not been entirely harmonious
as to what is meant by ' involving a freehold,' as that term is
used in the section above referred to; but without deeming it
necessary to review the several cases, we think it may be said
that where the question has been considered by the court and
decided, the .decision has in general (though there has been
one exception and perhaps more) proceeded upon the under-
standing that the word freehold means as that word was
known to and defined by the common law, and that it does not
include the mere right to that which in equity will entitle a
party to a ' freehold.' "
In the Sanford case, supra^ it was said, "it is the rule that
bills to foreclose mortgages, or establish other liens upon
land, do not ordinarily involve freeholds, because the defend,
ant may in such cases, by the payment of the money necessary
to discharge the lien, prevent the decree from being so
executed as to divest liim of his freehold, and usually the only
question litigated is the existence of the lien, the title itself
not being put in issue. The same may be said of bills to
redeem where the right to redeem is the only question
litigated. But in such cases, when the pleadings raise adverse
claims of title between the parties which must necessarily be
adjudicated in order to a decree, a freehold is involved."
Now the case at bar is a bill to foreclose a mortgage and
falls within the class of cases mentioned in the Sanford case^
dupra^ quoted, where the respondents, in case the lien is
established, may redeem by the payment of money necessary
to discharge the lien and thus prevent the freehold from
being divested.
There is no dispute but that the land originally deeded by
Inks to William H. and Grace A. Headlee, his wife, was so
100 Appellate Courts of Illinois.
VoLk 89.] Piper v. Headlee.
deeded by mistake, instead of the E. }, S. E. 28; nor tbattlie
latter tract was intended; nor that Headlee and wife orig-
inally executed the mortgage dated October 11, 1882, on
the land deeded by mistake, intending to mortgage the latter
described land. The main issue in this case is as to whether the
giving up of the original mortgage and notes, having Inks
deed the title of the land to William H. Headlee after the
death of his wife, Grace, and taking notes and a new mort-
gage from William H. on the land first intended to be con-
veyed and mortgaged, did not have the eflFect to release the
interest which Mrs. Headlee had in the land from the
equitable lien of the first mortgage, and also release her
interest in the land from being first subject to a second mort-
gage executed by her and her husband, by a proper description,
to appellant, from being a lien in the latter's favor superior
to his lien on the husband's interest in the land described
under the first mortgage, i. e., whether or not her interest in
the land should be first sold to satisfy the second mortgage
executed by her, before the husband's interest in the land
should be sold and applied on the second mortgage. .
We think, then, clearly no freehold is involved; it is only a
question of the existence and priority of mortgage liens.
See also Patrick S. Kyan v. Sanford, Supreme Court, filed
May 14, 1890, Ottawa; Hanks v. Khodes et al., filed May 14,
1889, 21 N. E. Eep. 774, where the court took jurisdiction
to decide a deed absolute on its face, to be a mortgage.
We now come to the main questions in the case. First,
did the appellant release the intended mortgage lien on the
land sold by Inks to William H. Headlee and wife and
intended to be mortgaged to appellant by the intended
grantees? It is clear in our minds that appellant never in-
tended to release his mortgage, either as to William U.
Headlee's interest or Grace A. Headlec's interest. The evi-
dence shows that it was his intention to perfect his lien on
the entire title. He procured the deed to be corrected by
having the entire interest in the land deeded to William N,
Headlee and then taking a new mortgage on the entire
title to secure the original debt It is insisted that the
Second District — May Term, 1890. 101
m ■ -. »
Piper V. Headlee.
original mortgage was released of record and fully dis-
charged, and tlie mortgage given by Mrs. Headlee, so far as
her interest in the land in question was concerned, was thereby
discharged. We do not so understand the transaction.
Tlie land described in the mortgage in error was owned by
one Kasbeer, who desired to have the cloud removed from
the title. It did ii6t belong to the Headiees, and never had,
nor to Ink, and neither of them had any claim on it; neither
had appellant. It was proper and right that appellant
should release the mortgage of record, for in reality it was
only an apparent mortgage. He received no pay for it, nor
any part of his debt. This action could not be regarded in
the light that he intended to release his equitable right to
have his mortgage corrected and to embrace the land intended.
The fact that appellant released Kasbeer's land had no im-
portance whatever, further than to show that an act of
justice was done to him. If no new notes and mortgage
had been taken no claim could with any show of reason
he' made that tlie release of Kasbeer's land could affect
his equities as against Mrs. Headlee's heirs and the land in
question. The release claimed then may be laid out of the
question entirely. It is insisted, though, by attorneys for
appellees, that inasmuch as the appellant took the new mort-
gage, and delivered up the old notes of Mrs. Plead lee and
her husband, the heirs' equitable interest in the land was
released; that she was only security for her husband, and that
appellant must be held to legal notice of that fact because
his agents, to loan the money, had knowledge of the fact
that Mrs. Headlee had furnished her part of the money,
$2,000, and her husband furnished |200, and borrowed
$3,000 of appellant, and that she in fact was security for her
husband's part. It is uncertain from the evidence just what
relation she bore to her husband in the matter. She had an
intended deed for an undivided one-half. Whether she was
intended to have that interest does not appear. If it was
she could not have beensecurity for her husband for all the
amount, for she should pay $600 more. Next, the evidence
does not disclose that Miller & Piper, the loan brokers, who
102 Appellate Courts of Illinois.
■ — - — - - - *
Vol. 39.] Piper v. Head lee.
procured the money from appellant, were in a legal sense
their agents. The Headlees employed them to procure them
the money on the market and agreed to and gave them the
sum of $30 for their services.
In this employrtnent whatever knowledge the agents had
was obtained from the Headlees. Miller & Piper then
applied to appellant for the loan and got it on their represen-
tations as to the securitj'. If there was any agency it was a
limited one. The evidence only discloses that Piper, of the
firm of Miller & Piper, told his brother that Miller made out
the papers and looked up the title; that he loaned the money
for his brother to accommodate him; thought he could make
a few dollars himself. He further testified that he did not
know that " you could call that being his agent."
Now it may be inferred from this, that appellant trusted
Miller to see that the title was all right and the papers prop-
erly made out, as amei;p accommodation. It was really not
necessary that appellant. should know for his own security
what relationship as to security existed between Hcadlee and
wife. All appellant need know was that the land was good
security and that the papers were all right. The fact of Mrs.
Headlee furnishing $2,000 was learned by Miller & Piper as
Headlee's agent, and we do not think that appellant should be
held to knowledge, as the investigation of this fact was not
within the scope of the agency of Miller & Piper, if any
existed; all he wanted to know was that tlie title was right
and the papers properly made. In Herrington v. McCormick,
73 111. 483, and McCormick v. Wheeler, 36 111.- 116, it was held
that where one party employed an attorney and he obtained
certain information from his client as such attorney, and after-
ward was employed by another party as an attorney, the last
party was not held to notice of the facts obtained from the
first clients by virtue of his last employment. The rule may
be based on the ground that communications between attorney
and client are privileged; but as we think the appellant's
employment, if any, did not call for the disclosure of such
facts, and as tiie agent's duties were to his clients, the Headlees,
good faith did not require such disclosures.
Second District — May Term, 1890. 103
Piper V. Headlee.
Perry Piper, the brother of the appellant, after being eni-
plo\'ed by the Ueadlees, went to his brother and got the
money from him, for the HeadleeB, he trusting his brother
to pay it over and take the notes and mortgage, Miller being
trusted to look up the title. This appears to bo the extent of
the agency of Perry Piper and Miller on appellant's part, and
this appears to be what was meant by appellant when he says
he loaned the money through Miller & Piper and that the
latter got the money to invest for him. It appears clear,
however, that appellant had no actual notice of Mrs. Headlee's
position as security, if she was such, till long after the,
attempted correction of tlie mistake, and we think he could
not be held to constructive notice except that the deed from
Inks was intended to be made to the Headlees jointly. He
therefore had good right to suppose that the note was given
jointl}' as principals, especially as the land was deeded to
them jointly or intended so to be. The law is that" the payee
or indorsee of negotiable paper takes it free from conflict-
ing equities between the makers or obligees, of which he
had no notice." Booth v. Storrs, 73 111. 439; Neimcewicz v.
Ghar, 3 Paige Ch. 651; same case on appeal, 11 Wend. 323.
This applies to equities between surety and principal as
well as other equities, and if the payee has no notice of
suretyship there is no equitable obligation to protect the
surety resting on him; he is justified as treating them both as
principals. Therefore we think that even if Mrs. Headlee
was security as between herself and liusband as to the §3,000
notes and mortgage, yet she was not released nor was her land
released by the taking of new notes and the extension of time
of payment, as to a portion of the notes, unless the new
notes were taken in payment of the old ones, of which we
think there is no proof. Tiie circumstances of this case gave
appellant a strong equity to have this mortgage satisfied out
of the land intended to be conveyed and mortgaged as against
Mrs. Headlee and her heirs, even though she had signed the
notes as surety. As between Inks and her and her husband
this $3,000 would have occupied the position of purchase
money and forelosure enforced on equitable grounds, and it
104 Appellate Couets of Illinois.
Vol. 89.] Piper v. Headlee.
would have made no difference that she had advanced a por-
tion of the purchase money. The title would have been bur-
dened with the full payment. Without the expected payment
in full, the owner of ihe land would not have parted with the
title and she could have enjoyed no part of the land; henco
equity gives the grantor a lien on tiie land conveyed, called
a vendors lien, for the payment of the purchase money.
The case of appellant is not much, if any, different in principle,
as regards his equities, from what that of Inks would have
been had he taken the $3,000 mortgage as did appellant.
Instead of Inks giving the credit, appellant places himself in
his position, advances the money for the title, has it con-
veyed, or intended to be, to Ileadlce and wife jointly, and
then by intention takes a mDrtgago back to secure such pur-
chase money so advanced, all being at the same time and one
entire transaction. As far as the equities of the parties are
concerned, we must treat this case as though there had been
no misdescription in Inks^ deed and in appellant's mortgage;
for it is an equitable maxim that "that in equity is treated
as done tliat should have been donc.^' A case very nearly in
point is Curtis v. Koot, 20 111. 54. It is there said : " In
point of right and principle it can make no difference whether
the mortgage is given to the vendor of the purchase money
or to another who actually advances the means to pay the
purchase money to tiie vendor." The same doctrine is
affirmed in Iloane v. Baker et al., 120 HI. 308.
By taking the new notes and mortgage, it was nndoubtedly
the intention of appellant to release the estate of Mrs. Ueadleo
from any personal liability on the notes: but he was striving
his best to hold the mortgage lien, and if a court of equity
doesjiot interfere as against William N. Headlee and appel-
lant in favor of the heirs of Mrs. Ileadlee to recover tlie title to
her share in the land, there can be no question but the new
mortgage would be all that is necessary to secure the balance
of the purchase money. When these heirs come in by their
cross-bill and ask this relief, they should not be allowed to do
an inequitable thing by taking Mrs. Ileadlee's share free
from the lien of the purchase money. It appears that iu
Second District — May Term, 1890. 105
^'^'^^^— ^^^^^^^™^— ^^^™^^^ ■ ■ ■ ^i^^»^ I I ■■■■■■ I ^^^^^^^^^^.1 » I ■ ■ ■■■■■■■■ ■ ■■ 1^ I ■ I ■ ■ ^I^M^M^—l^^— W^M^i^^^^^^
Piper V. Head lee.
taking the new notes and mortgage the debt was not
increased and only the time extended as to the payment of a
portion of it. The entering satisfaction of a mortgage and
taking a new one, when designed by the parties to be a
continuation of the first mortgage, is not a satisfaction but a
continuation of the first mortgage, and as to an intervening
judgment creditor of the mortgagor, does not give him pri-
ority. Campbell v. Trotter, 100 111. 281.
It makes no ditference whether appellant's relief is granted
on the new or old mortgage, so .that the amount is not
increased beyond what would have been due on the mortgage
of 1862. Even if Mrs. Headlee's interest in the land liad been
released from the mortgage of 1882, the court below erred in
holding that William N. Headlee's interest in the Inks eighty
acres should be first sold in order to satisfy the $4,000 mort-
gage, given by Mr. and Mrs. Headlee as a second mortgage on
this tract to secure the purchase money of another tract
included in the same mortgage.
The appellant liad a prior mortgage on the Inks eighty, and
if William N. Headlee's interest be first sold to satisfy the
second mortgage then lie loses his security to that extent on
his first mortgage. The appellant undoubtedly had a right to
the satisfaction of his first mortgage first, out of the land
therein pledged. It was first given and should be first satis-
fied. When Mrs. H. gave the second mortgage on the
Inks eighty she knew of the first mortgage, and must have
known that appellant had a prior lien, and she can not com-
plain, nor her heirs, that the Inks land be sold to pay that
first.
Even if her portion of the Inks eighty is released, that can
not change her relation to the first and the second mortgages
which she had signed. A great advantage would accrue to
her by her land being released from the first mortgage, but
why should this entitle her to another by changing appellant's
first mortgage into a second one and making it subsequent to
the second, and thereby compelling the selling of William N.
Headlee's interest in the Inks eighty, first to apply on second
mortgage, so as to release her interest in the Inks eighty to
39 10(5
107 96
39 106
114 84
106 Appellate Courts of Illinois.
Vol. 39.] Barton v. Harris.
tliat extent from the lien of the second mortgage? "We can
not see any justice in this.
From what we have said it will be seen that we hold that
the interest of the heirs of Grace A, Ileadlee in the Inks
eighty so called was not, nor was that of their mother in her
lifetime, released from the mortgage of October 11, 18b2, by
the taking of a new mortgage by appellant from William N.
Headlee alone, and the land therein named is liable to be sold
to satisfy the notes named in the second mortgage given for
the pm'chase money to correct mistake, not to exceed in amount
the original notes and interest, William N. Headlee's interest
being first sold and applied; that this mortgage is entitled to
the priority of all others; that the twenty fifty-second interest
of the heire of Grace A. Headlee, if any remains after the
satisfaction of the purchase money of the Inks eighty-acre
tract, secured by the first and third mortgages, be applied in
payuient of the mortgage of 1885 for $4,000 and interest
after the other land contained in the latter named mortgage
is sold and applied to its satisfaction, and after all of William
N. Headlee's interest is applied, if any remains after satisfying
the mortgage of 1882.
The decree of the court below is therefore reversed and
cause remanded with directions to the court below to enter a
decree in accordance with this opinion.
Heversed and remanded with directions.
Spencer Barton
V.
J. R. Harris.
Practice — Otet^nling Motion for New Trial — Necessity of Exception,
Where a motion for new trial is overruled and the defeated party fails
to except, it will be presumed that he acquiesces in the decision of the
court, and it can not be assigned for error.
[Opinion filed January 9, 1891.]
Second District — December Term, 1890. 107
^i— ^— ^^— ■ I ■!
Morehouse ▼. City of Dixon.
Appeal from the County Court of Peoria Countj-; the
Hon. J. C. PicKNEY, Judge, presiding.
Mr. W. T. Whiting, for appellant i
Mr. S. D, Wead, for appellee.
Per Curiam. This was an action commenced by appellee
against appellant before a justice of the peace to recover
damages to his corn grown on land which he had rented from
one Jacob Darst. The appellant occupied a piece of land
adjoining that occupied by appellee, and the fence not being
kept up the cattle of appellant got through and onto the land
of appellee, and committed the damages to the corn of appellee
complained of and for which the judgment was rendered.
This dispute is as to whose duty it was to keep up the fence.
The case was tried without a jury by the court. It appears
that after the finding of the court there was amotion made
for a new trial which was overruled by the court; but
appellant took no exception to the action of the court in
overruling the motion. In this state of the record the appel-
lant is precluded from raising the objection that the finding
of the court was against tlie evidence. When the record fails
to show exceptions taken to the overruling of a motion for a
new trial, it will be considered that the party acquiesced in
the decision of the court and it can not be assigned for error.
J^w V. Fletcher, 84 111. 45; Stern v. The People, 96 111.
476; James v. Dexter, 113 111. 654; Graham v. The People,
119 111. 659.
These cases are decisive and the jndgment must be
affirmed. Judgineiit afinaed.
Thomas C. Morehouse
V.
City of Dixon.
Munfripal Corporations — Negligence of— Defective Si dewaJJc— Personal
Injuries — Cripple — Evidence — Instructions.
39 107
85 80
lOS Appellate Courts of Illinois.
Vor.. ' 9] Morehouse v. City of Dixon.
1. All instruction not based upon evidence adduced should not be given.
2. Nor one that is suf^gestive and argumentative.
3. Nor one that calls the attention of the jury to a fact and gives it
uuduo prominence.
4. In an action brought to recover from a municipality for personal
injuries alleged to have been occusioncd by its negligence, this court holds
that on account of the giving of wrongful iuRtructions for the defendant,
and the refusal of one that was proper in behalf of the plaintiff, the judg-
uient against the latter can not stand.
[Opinion filed May 21, 1S91.]
In error to the Circuit Court of Lee County; tlie Hon.
William Brown, Judge, presiding.
Messrs. W. & W. D, Barge, for plaintiff in error.
The city, knowing the defective condition of this walk,
is responsible for all damages occasioned thereby. City of
Bloomington v. Bay, 42 111. 503; City of Sterling v. Merrill,
124 111. 522. \
The plaintiff was justified by the law in presuming that
the walk was free from danger and acting on that pre-
sumption. Weed V. Ballston Spa, 76 K Y. 329, 333; Daven.
port V. Buckman, 37 K Y. 568, 573; Joliet v. Verley, 35 111.
58; Seward v. Milford, 21 Wis. 485.
The plaintiff was " going as I go anywhere." This is exer-
cising reasonable care and caution. He was under no obliga-
tion to constantly think that danger might be lurking near.
George v. Haverhill, 110 Mass. 513; Weiscnberg v. Appleton,
26 Wis. 56; Chicago v. Hoy, 75 111. 530, 533; Elgin v. Ren-
wick, 86 111. 498; Wheeler v. Westport, 30 Wis. 392, 415,
416.
The first instruction given for defendant is erroneous.
It required plaintiff to leave the walk and make a circuit
around the obstruction. This is not the law. City of Sand-
witch V. Dolan, 133 111. 177.
The plaintiff had the right to presume the walk was safe
and free from danger, and he had a right to act upon that pre-
sumption. This right absolved him from all obligation to
leave the walk. Bloomington v. Chamberlain, 104 111. 268,
273.
Second District — December Term, 1890. 109
Morehouse v. of City Dixon.
This 18 true, even though there was a pafe way around tlie
defect, there being nothing to prevent one passing over tlie
defective way. Seward v. Milford, '21 Wis. 485; i^ee -Au-
rora V. Hillman, 90 111. 61, 64.
It is not based upon the evidence. No person testified
that plaintiflf knew the dangerous condition of this walk.
Even if the plaintiflf did know the defective and danger-
ous condition, still he can recover, if, as the testimony shows
the fact to be, his attention was momentarily diverted from
his steps by some startling event. George v. Haverhill, 110
Mass. 506, 513; Weisenberg v. Appleton, 26 Wis. 56;
Wheeler v. Westport, 30 Wis. 392, 415.
" Nor does the mere fact the plaintiflf might have taken a
better and safer sidewalk than the one he did take, cliarge
hi^n with want of ordinary care. He traveled the usual and
most direct route to and from his work." Aurora v. Hill-
man, 90 III. 61, 65.
The testimony shows that plaintiflf was obliged to expose
himself to this danger in order to perform his duties. As
they compelled him to be upon this walk, the law would not
exact of him as much prudence and timidity as it would of
another wha was under no obligation to be there. Chicago
V. Sheehan, 113 III. 658, 661.
Just such an instruction as this was condcnmed by our
Supreme Court in Peoria v. Simpson, 110 111. 294, 304.
The defendant's third instruction tells the jury that if they
believe the plaintiflf "was so crippled as to render him more
liable than a person not so crippled to stub his toe against
projections above the surface of the main walk, or to render
it more difficult for him than a person not so crippled to save
himself from falling in case he should so stub his toe or
should step into A crack in the walk, then," etc.
This is not supported by the evidence. No witness testi-
fied that plaintiflf was more liable to stub his toe than one not
so crippled. The evidence shows he stubbed the toe of his
left foot There is no testimony, whatever, that plaintiflf
was crippled in his left foot or leg.
There is no testimony showing it was more difficult for him
110 Appellate Courts of Illhs^ois.
Vol, 39.] Morehouse v. City of Dixon.
to save himself from a fall, after stumbling, than it was for
others not so crippled.
•It is error to give instructions not based on the evidence.
Wenger v. Calder, 78 111. 275; C, JB. & Q. v. Dickson, 88 111.
4:37, 438; Frantz v. Rose, 89 111. 594.
Moreover, defendant's second instruction tells the jurors
thoj are " to be governed solely by the facts as they appear
from the evidence." These instructions are, therefore, mis-
leading, conflicting and confusing.
Instructions that give undue prominence to facts or rules
of law are erroneous. Mix v. Osby, 62 111. 193; Calef v.
Thomas, 81 111. 478.
It says that even if the defendant was negligent, still, if the
jury believe the plaintiff could have avoided the injury by the
exercise of reasonable care, the verdict should be for defend-
ant.
That is not true, unless his failure to exercise such care
contributed to the injury. 2 Thompson on Negligence, 1148;
1151 ; Cooley on Torts, 679.
There is no limitation in the law that the walk shall be
kept safe for travelers. It is to be kept safe for all purposes
to which it may be lawfully devoted, for recreation, pleasure,
idle curiosity, as well as travel. Chicago v. Keefe, 114 111.
222, 227.
Mr. Edward E. Wingbrt, for defendant in error.
Although a person traveling upon a public sidewalk in a
city has a right to presume that such walk is in a reasonably
safe condition, yet it is his duty to exercise reasonable and
ordinary care and prudence to avoid danger. Chicago v.
Hickok, 16 111. App. 142.
The burden of proof of plaintiff's exercise of such ordinary
care was upon himself in this case. C, B. & Q. R. R. Co. v.
Gregory, 58 111. 272; Kepperly v. Ramsden, 83 111. 354.
It is not error to repeat instructions, although repeated
instructions may be refused without error. Weyhrich v. Fos-
ter, 48 III. 115; Scott v. Delaney, 87 111. 146.
There need be no express permission given a property
Second DistVvICt — December Term, 1890. Ill
Morehouse y. City of Dixon.
liolder to use the sidewalk for a reasonable tinje and in a
reasonable manner for the storage of building materials in the
absence of municipal regulations relating thereto. Dillon
Man. Corp. (Fourth Ed.), Sec. 730; Clark v. Fry, 8 Ohio St.
358, 376; Adams v. Fletcher, 20 At. Rep. 263.
Lacey, J. This was a suit brought by the plaintiff in error
against the defendant in error to recover damages occasioned
by a fall on a sidewalk in the city of Dixon, June 20, 18S4,
by reason of which one of his legs was injured and had to be
amputated below the knee. The charge in the declaration is
that the sidewalk by reason of tlie negligence of the defend-
ant in error was allowed to become defective, there being
large unguarded spaces between the planks, and that the
plaintiff in error, while exercising due care, stumbled, slipped
and fell and received severe injuries, suffering the permanent
loss of his right foot.
It is alleged in the second coimt that the walk was defective
and that the city by exercising reasonable care could have
known it; and in the third count that the city had notice of
the defect. The allegation is in all of the counts as to the
injury. The damages were laid at §6,000. Upon issue being
joined tlie case was tried before a jury, the trial resulting in
a verdict for the defendant in error, and upon motion for a
new trial being overruled, judgment was rendered against the
plaintiff in error for costs. It is assigned for error that the
court gave defendant in error the first, second and third, fifth,
eighth and twelfth instructions in favor of the defendant in
error, and in refusing the plaintiff in error's eleventh instruc-
tion.
We have examined the instructions fully and regard the
second, fifth and twelfth of defendant in error's instructions as
proper. The first and third we think very improper and
erroneous. The first and third instructions were as follows:
First. "You are instructed that a person has no right to
knowingly expose himself to danger and then recover for an
injury which he might have avoided by the exercise of
reasonable care and caution, and if you believe from the
evidence that the plaintiff knew of the defects and obstruc-
112 Appellate Courts of Illinois.
Vol. 39.] Morehouse v. City of Dixon.
tions in the sidewalk, and that in passing along such walk he
could have avoided passing over such defects and obstructions
bj taking a short circuit around thera, you have to consider
his failure to make such a circuit in dcterinining whether
the plaintiff exercised due and reasonable care and caution."
Third. " You are instructed that while all persons are re-
quired by law to exercise reasonable care and caution in
walking on the sidewalks of a city, still, in determining what
constitutes such care and caution, any defect in the parties' limbs
or feet, interfering with their free and natural use (if
proven), should be taken into account; and in this case, if
you believe from the evidence that the plaintiff at the time
of the alleged injury was so crippled as to render him more
liable than a person not so crippled to stub his toe against
projections above the main surface of tlie walk, or to render
it more difficult for him than a person not so crippled to
save himself from falling, in case he should stub his toe, or
should step into a crack in the walk, then reasonable care
would require of him that he move more cautiously and
with greater care on the sidewalks tlian if he were not so
crippled."
The first is erroneous because it calls the attention of the
jury to a fact and gives it undue prominence. The mere fact
of the knowledge of the defect on the part of the defendant
in error and the further fact of liis failure to go around the
spot where the injury occurred is required by the instruction
to be taken into account in determining the question of care
on the part of the defendant in error. No other facts or
circumstances are mentioned. This was undoubtedly a ques-
tion for the jury to consider, but not the only evidence, and it
should not have been singled out as though it were the only
question in the case.
Tlie third instruction is erroneous because it calls the jury's
attention especially to supposed facts and because there is no
evidence on which to base it. The injury was not caused by
the defective foot, nor was there any evidence tending to
show that it was negligence to go onto the walk with such a
foot as the plaintiff in error had, any more than with a well
Second District — December Term, 1890. 113
Morehoope v. City of Dixon.
foot The instrnction ignores the question of knowledge on
the part of the defendant in error of any defect in the side-
walk, and is suggestive and argumentative throughout. We
will now notice the objection to the refusal of the court to
give the eleventh of plaintifiE in error's refused instructions.
It was to the effect that the jury had no right to draw any
inference or conclusion unfavorable to the plaintiff from the
fact that the said boot or shoe worn by defendant in error
at the time of the accident was not before the jury as evi-
dence in the case, and that the jury should disregard such fact
and all arguments or statements concerning the same.
We think the court should have given this instruction.
Under the evidence in this case the plaintiff in error was
imder no obligations to produce the boot or shoe in evidence,
and although this evidence may have come out on the trial,
it was not proper for the jury to draw any inference unfa;
vorable to the plaintiff in error from it. The instructions
should have been given for the purpose of excluding from the
minds of the jury such improper evidence or the effect of it.
We have examined the evidence in the case and feel satis-
fied that the evidence would have sustained a verdict in favor
of the plaintiff in error. We regard, therefore, the giving (Tf
the wrongful instructions for the defendant in error and the
refusal of the rightful one for the plaintiff in error as mate-
rial, and such action by the court may have unfavorably
influenced the verdict of the jury against the plaintiff in
error.
For these reasons the judgment of the court below is
reversed and the cause remanded.
Reversed and remanded.
ToL. XXXIX 8
114
Appellate Courts of Illinois.
Vol. 39.] Chi., Wilmington & Vermillion Coal Go. v. Petemon.
39
39
81
]I4<
6071
m,
147
89 114
f97 "187
The Chicago, Wilmington & Vermillion Coal
Company
V.
Frank O. Peterson.
faster and Servant — Negligence of Mine Owner — Failure to Supply
Props — Laws of 1887, Sees. 14 and 16, Page 235 — Evidence — Contrilatui-y
Negligence — Instructions — Practice,
1. A judgrment of a trial conrt may be reversed pro forma on aoconni
of the failure of an appellee to file briefs herein.
2. Gross negligence is the want of ordinary care; what oonstitntes ordi-
nary care varies with the circumstances of each case; one must act under
all circumstances as a reasonably prudent person should act.
3. It is against public policy to allow the provisions of a statute touch-
ing the care an employer mwt exercise with regard to the protection of his
employes from personal injury, to be dispensed with by contract.
4. An employe injured through the negligence of his master may
release him from liability therefor upon receipt of a sum agreed upon.
5. In the case presented, this court holds, in view of the evidence, that
under the statute it was sufficient for the plaintiff to notify the '* mine air
driver " that props were necessary in the room where he was at work; that
the release in question was understandingly executed and delivered by the
plaintiff to the defendant, and that in view thereof the judgment in his
favor can not stand.
[Opinion filed May 21, 1891.]
Appeal from the Circuit Conrt of Burean Connty; the
Hon. George W. Stipp, Judge, presiding.
Messrs. George S. House and Echeleb & Kyle, for appeU
laut.
No appearance for appellee.
TIpton, J. In October, 1889, and prior thereto, appellant
was the owner of a coal mine in Seatonville in Burean
County, and engaged In operating the same, and employed
/
Second District — December Term, 1890. 115
Cbi.» Wilmiogton & Vermillion Coal Co. v. Peterson.
appellee therein as a "loader" under a contract whicli was
reduced to writing.
The mine was operated by what is known as " long-wall
work," all the coal being taken out as the work progressed.
Koadways were maintained at the base of the mine, from
the elevated shaft to the coal face, and deflecting therefrom
entries and branches were made, denominated "rooms."
These "roadways," " entries " and " rooms," as the work pro-
gi'cssed, required " building up" on the sides, and props with
caps to sustain the roof. The " building up " was done in the
night time principally, by the appellant's servants, and con-
sisted in building or erecting a wall of stone or other solid
material from the base to the roof of the mine, about three
feet from the coal face, and filling in the back with dirt or
other material to support the sides and roof from caving or
, falling in. At the time in question the mine was in part
operated by mining machines which cut and removed the
earth or other material from under the coal face, and between
it and tlie "building," about four feet in depth, extending
back from under the coal face some distance, that the pres-
sure from above the coal bed might aid in breaking it down
for removal.
This being done, holes were drilled into the coal face, and
the coal loosened by powder blasts, so that it could be pulled
down by the " loaders," placed upon the " pit cars," taken to
the shaft and elevated. As the coal is taken down and
removed the space between the " building " and the " coal
face " increased, and it became the duty of the " loader " to
secure the roof from falling by props as before stated.
It was the duty of appellant to deliver to appellee the
props and cap-pieces as the same should be required, with
the " minora' empty car," so that the appellee as such work-
man or "loader" might at all times be able to properly
secure said workings for his own safety, while so engaged,
and for any wilful failure so to do would be liable in
damages for any direct injuries by appellee sustained arising
from such neglect Session Laws, 1887, title " Mines and
Miners, " page 235, Sees. 14 and 16.
116 Appellate Courts of Illinois.
Vol. 39.] Chi., Wilmington & Vermillion Coal Co. v. Peterson.
On the morning of the 22d of October, 1889, appellee and
his associate "loader," commonly called a "butty," went into
the mine and commenced work as " loaders " where they were
pnt at work by the pit boss of the appellant. Appellee
thought the roof of the mine on the left of the room
in which they were put at work required propping and com-
menced to prop the roof on that side as they progressed
in taking out the coal, until they had used all the props.
About nine or ten o'clock in the morning of that day appellee
and his co-worker or " butty " both called to the driver of
the " miners' empty car " to bring in more props and caps.
This request was repeated many times during the day and
before the injury complained of occurred, but none were
brought them, though the "empty miners'^ cars " were driven
in to them to be loaded every fifteen or thirty minutes.
At about four o'clock in the afternoon of that day and while
so engaged as a "loader" in said mine, the roof on the left
side of the room in which he was put at work caved in, for
want of being sufficiently propped; a quantity of rock, coal
and earth fell upon appellee, causing the injury com-
plained of and for which this suit was brought. Appellee
alleges that this result and consequent damage to him was
occasioned by the wilful failure of appellant to comply with
the provisions of Sec. 16 of the act above referred to. The
action was in case, plea the general issue, trial had with jury
in the Circuit Court, which resulted in a verdict for the
appellee, upon which, after overruling a motion for a new
trial, judgment was rendered, to which appellant excepted,
and appealed to this court, and it is here insisted by appel-
lant's counsel that the trial court erred.
1st. In giving, refusing and modifying instructions.
2d. In refusing to allow appellant to give the written
contract with appellee to" labor in the mine, in evidence.
3d. Appellee's receipt and release put in evidence by
appellant barred appellee's right of recover}'.
4th. In denying appellant's motion for a new triah
We have not been favored with briefs or suggestions by the
appellee or his counsel. Under the rules of this court the
Second District — December Term, 1890. 117
Chi., Wilmington & Vermillion Coal Co. v. Peterson.
jndgmcnt of the Circuit Court might be reversed ^/•(?y5?rma
and without further examination, for appellee's failure to
file briefs in the case, but under the circumstances we deem
it proper to determine the case upon its merits. Asher v.
Mitchell, 7 HI. App. 127.
First, We think the trial court erred in giving to the jury
appellant's instructions numbered one, two, three and four.
In our judgment they were each and all vicious, as offered,
and in no manner aided by the attempted qualification or
amendment of the trial court, connecting the evidence estab-
lished; that on the day of the injury, and before its occur-
rence, the appellee determined from examination that more
props were needed or required to render the roof of the
mine in which he was put at work perfectly safe, and that
appellee demanded and requested them of the " empty car
driver," whose duty it was to deliver to appellee props for that
purpose, and that notwithstanding the props were not de-
livered to him, as requested, appellee still continued to work
in the mines; that alone might be regarded as negligence ^e/*
se suflicient to defeat a recovery as stated in the instructions.
Appellee might have required the props out of excessive or
over-abundant caution, and not actual necessity, as measured
by ordinary care. Appellee was only bound to use ordinary
care, and the law as laid down in the commencement of the
appellant's first instruction is correct; but as amplified and
sought to be applied to the case at bar in its subsequent parts
in the appellant's instructions numbers two, three and four, we
regard it as misleading, and not a correct statement of the
law.
In our opinion the attempted modification of the instruc-
tions above referred to was useless, and the last part of the
modification misleading. Gross negligence is now regarded
in this State simply as the want of the use of ordinary care.
Ordinary care is all that is required, but this is required in
all cases. In some cases more caution is required to avoid
an injury than in others, because of the variant circumstances
and the different situations under which the injury may
occur. In the case at bar if the appellee was waiting for props
118 Appellate Courts of Illinois.
70L. 39.] Chi., Wilmington & Vermillion Coal Co. v. Peterson.
to sustain the roof of the mine, the delivery of which was
required by statute to be made to appellee by appellant,
through its servants, "empty car drivers," appellee might have
been justified in continuing work (notwithstanding there was
apprehended danger) for a reasonable length of time after
a demand made therefor, expecting that the props would be
delivered to him, when under other circumstances reasonable
care would have required him to desist at once from working.
One must act under all circumstances as a reasonably prudent
person would act, which is denominated reasonable or ordi-
nary care. Chicago Anderson Pressed Brick Co. v. John
Sobkowiak, 38 III. App. 531.
In the case at bar, the doctrine of comparative negligence
had no place, and in that view the instructions as amended
were in our judgment erroneous and misleading.
We think under the present statute {supra) that appellant's
fifth and seventh instn cti >ns were erroneous and should have
been refused. These instructions were not aided by the
modification, which was only another name or form of
expression for the want of the use of ordinary care as above
stated.
Second. We are of the opinion that under the statute
{sfcpra) it was sufficient for the appellee to notify the " mine
ear driver" that props were wanted for use in the room where
appellee was at labor. We also think that the trial court
committed no error in refusing to admit the written contract
for labor in the mine, between appellee and appellant, to he
read in evidence to the jury. The law of the case is controlled
by the statute, and in our judgment it would be against public
policy to allow its provisions to be dispensed with by any
contract between the parties.
Third. On the trial in the court below the appellant
oflfered in evidence the following release and receipt, which
was read to the jury, viz.:
Seatonvillb, III., Dec. 28, 1889.
"Received of the Chicago, Wilmington and Vermillion Coal
Company, the sum of fifty (50) dollars, the same being
received by me as satisfaction in full of all demands and
Second District — December Term, 1890. 119
■
Chi., WilmiDfirton & Vermillion Coal Co. y, Peterson.
charges of everj kind and character by me held at this time
against said company, expressly releasing any and all claims for
damages I may have, if I have any against said company by
reason of an injury by me received on the 22d day of
October, 1889, in said company's mine, at Seatonville. Witness
my hand and seal this 2Sth day of December, 1889.
(Signed) •'F. O. Petekson. [Seal.]
"Subscribed in presence of
" Grs BcoKLAND, witness.
"Beers, witness."
Tliat this contract of release of appellant from all claims
for any and all damages sustained by the appellee in conse-
quence of the injuries complained of, in the suit at bar, for
and in consideration of the sum of $60, paid appellee at the
time of its execution, if the execution and delivery thereof
was not procured through fraud, misrepresentation or deceit of
appellants or its agents, should be held to preclude and bar
appellee from a recovery in this suit, none can dispute.
It is conceded that the release was read over and explained
to the appellee before its execution and delivery to appel-
lant and that appellant denied all liability for any damages
in consequence of the injuries received by appellee, claiming
and insisting that such injuries were caused by appellee's
own negligence and want of ordinary care. That at the time
of the execution of the release, appellee insisted that inas-
much as it had been customary at the mine when any of the
miners were injured for a collection to be taken up for the
injured person, the last of which collection so taken up
amounted to $53, to which appellee claimed he had contrib-
uted, and because the operators there at the mine were not
at work, he thought appellant ought to help him some. The
only objection, as we understand, which a])pellee or his counsel
make or interpose to the efficiency of the release as a bar to
this suit, is that appellee did not understand it We think
the great weight of the evidence upon that point is, that the
release was understandingly executed and delivered to the
appellant.
Appellee nowhere claims that he did not understand the
120 Appellate Courts of Illinois.
Vol. 89.J Rippentrop v. Doctor.
English language, which, as appears by the record before
lis, he did. He gave his evidence in the English language,
signed his name to the release and manifestly understood the
transaction of business in English, and the release was fully
read to him, as he admits in his evidence, and explained par-
ticularly, as shown by the three or four other persons wlio
were present at the time of its execution and delivery. If
appellee did not then ufiderstand it, it was his own negli-
gence and he can not now be heard to complain.
We think the trial court erred in not allowing appellant's
motion for a new trial, and for the reasons above stated the
judgment of the Circuit Court is reversed and the cause
remanded for further proceedings not inconsistent with the
views herein before expressed.
Heversed and remanded.
John C. Rippentrop
V.
Garbrand Doctor.
Master and Servant — Recovery of Wages.
This court aflSrms a judgment for the plaintiff in an action brought for
the recovery of wages.
[Opinion filed May 21, 1891.]
Appeal from tlie Circuit Court of Ogle County; the Hon.
John D. Cbabtree, Judge, presiding.
Messrs. Hathawat & Baxter, for appellant
Messrs. O' Bbien & O'Brien, for appellee.
TIpton, J. This suit was commenced before a justice of
the peace to recover wages claimed to have been due appellee
from appellant for services rendered. In the justice court
Second District — December Term, 1890. 121
Rippentrop v. Doctor.
the appellee obtained a judgment against appellant for
823.75, which the judgment recited was for labor, and an
attorney's fee of $10 was allowed to be taxed with tlie
costs, etc., from which judgment appellant appealed to the
Circuit Court of Ogle County, in which the cause was heard
with a jury, resulting in a verdict for appellee in the sum
of $23.75, upon which after overruling a motion for a new
ti-ial the Circuit Court gave judgment, and for costs and
attorneys' fees of $20, and appellant furtlier appeals to this
court Tlie questions presented by this record are entirely
questions of fact.
That appellee ha(J earned by his services actually rendered
appellant at the stipulated contract price therefor, over and
above all payments made, the sum of $23.75, there can be no
doubt. The defense her^ and in the court below was that
appellee had agreed to work for another month and that ho
left appellant's service before the completion of the contract.
The appellee claimed that he was taken sick, and as he
swears, left the appellant's service for that reason and with
his consent and permission, and he further denied the con-
tract for such service being for any g/ven time, as stated by
appellant. These were the only questions made in the pre-
vious trials. It is insisted in effect that the verdict is not
supported by the evidence. We have carefully examined the
record before us and we are not able to say that the jury
were not fully warranted in their finding in the verdict
rendered, and we are unable to perceive any reasonable
error of the trial court in rendering a judgment upon that
verdict. We understand that the claimed errors as to the
allowing of attorneys' fees to appellee by the trial court, as
well as all objections which might have been taken by reason
of the instructions, verdict and motion for a new trial having
been omitted from the bill of exceptions by agreement of
parties since the appeal, have been waived, hence we
have refrained from any reference thereto. Perceiving no
reversible errors in the record, the judgment of the Circuit
Court must be aftu'med, and that judgment is afHrmed.
JudgTnent affirmed.
1 22 Appellate Courts of Illinois.
Vol. 89-1 Oberiie, Hosick & Co. v. Bunn.
Oberne, Hosick & Co.
V.
William E. S. Bunn.
39 123
-^-^ Negotinhle Instruments — Draft — Consideration — Gaming — Stakeholder
'—Practice — Petition/or Rehearing — Certificate of Importance,
1. In an action to recover from the defendant the amount of a draft made
payable to him and drawn upon the plaintiffs by their agrent, the fiict beingr
that the same covered a Bum lost by such agent in praminfif, this court holds
that defendant was simply a stakeholder for said affent, and that as he paid
out the amount thereof as directed by such agent, and had no notice of the
plaintiffs^ rights, the judgment in his favor can not be interfered with.
2. A defeated pjirty in this court has his election either to petition for
a rehearing, or in proper case to pray for a certificate of iniportiince, but
can not do both unless the petition for rehearing can be disponed of within
the time limited by statute within which to pray for a certificate of im-
portance.
[Opinion filed May 21, 1891.]
In error to the Circuit Court of Peoria County; the Hon.
T. M. Shaw, Judge, presiding.
Messrs. McCulloch & McCulloch, for plaintiffs in error.
Defendant knew that the purpose for which the draft was
drawn was an unlawful purpose; he knew, when he obtained
the money on it, that it was for an unlawful i^urpose: he
knew, when he agreed to act as the agent of Weider in paying
out the money so obtained, that he was paying it out for an
unlawful purpose, and he knew that, no matter whose money
it was, it was being paid out without any consideration, and
that, even if it had been Welder's money, it could have been
recovered back from the winners. He therefore took all
risks in the transaction, and if he has received the moneys of
the plaintiffs, and appropriated them to an unlawful purpose,
he must make them good.
That all such transactions are void, and that there can be no
such thing as an innocent party thereto, is abundantly shown
Second District — December Term, 1890. 123
Oberne, Hosick & Co. v. Bunn.
by the authorities. Cliapin v. Dake, 57 111. 295; Town of
Eagle V. Kohn, 84 III. 292; Tenny v. Foote, 4 111. App.
594; Doxy v. Miller, 2 111, App. 30; Bank v. Portner, 21 N.
E. E. 634.
The draft itself being void, the indorsement was void, the
payment was void, and no persons could acquire any rights
whatever under it. Plaintiffs have therefore shown a com-
plete right of action. Bank v. Spaids, 8 111. App. 493.
In the case of McAllister v. Oberne et al., at the present
term of this court, the money for which plaintiffs recovered
judgment was drawn upon checks drawn by Weider upon tlie
funds of plaintiffs in bank at Peoria, and in their name. In
that case the court (the same judge presiding) held the law to
be as we here contend for. The only substantial difference in
the cases is, that in the one case the court held the party
receiving the checks to be chargeable with notice that tlie
money was that of the plaintiffs, but in the other, for want of
such notice, the party receiving it had the right to retain it
Messrs. Stevens & Horton, for defendant in error.
Appellants can not recover as for money lost at gambling,
since the appellee was at most a stakeholder and paid the
money over to the winners before notified not to do so.
Petillon v. Hippie, 90 III 420; Lewis v. Bruton, 74 Ala. 317;
Gregory v. King, 58 111. 169.
And there is nothing in the statute which allows a recovery
against the stakeholder after payment. Starr & C. 111. Stats.,
Sec. 180, Chap. 38.
Nor can they recover for money had and received without
regard to the statute, because —
1. The appellee does not hold money which ex ceqico et
bono belongs to the appellants. Belden v. Perkins, 78 111.
449.
2. Tlie appellee did not convert or appropriate the money
of appellants to his own use. Hill v. Hayes, 38 Conn. 532;
Nelson v. Iverson, 17 Ala. 216; Burdit v. Hunt, 25 Me. 419;
Frome v. Dennis, 45 N. J. L. 515; Rembaugh v. Phipps, 75
Mo. 422; Perslcy v. Powers, 82 III. 125; Hill v. Belasco, 17
111. App. 194; Cooley on Torts, 452, 456.
\
124 Appellate Courts op Illinois.
Vol. 89.] Oberne, Hosick & Co. v. Bunn.
It was therefore proper for the court to instruct the jury
that the defeudant could not be held liable unless he had
notice while the money was in his po66966ion that it belonged
to plaintiffs.
There is nothing in any of the cases cited by appellant,
since in each of them the money or property was at the time
in possession of the defendant, or had been appropriated to
his use and benefit.
Upton, J. This is an action by plaintiffs in error against
defendant in error, in assumpsit, for money paid by them
upon a draft drawn upon them by one C. F. Weider, their
agent, under the following circumstances:
l^lain tiffs in error had their principal place of business in
the city of Chicago and also had a branch house in the city of
Peoria, which branch was under the management and super-
vision of C. F. Weider. The business of the plaintiff firm
was that of purchasing hides, tallow, furs', etc. When
Weider desired money for purchase or for deposit in bank in
Peoria for salary and expenses of the business at that point,
or for advances to persons of whom he made purchases, he
drew drafts on plaintiffs in error in Chicago, and gave them
credit therefor in his accounts when drawn. Drafts drawn in
Peoria were deposited in the bank there, where Weider kept
his accounts. If drawn while away they were sent direct to
plaintiffs in error in Chicago. This course of dealing, however,
does not appear to have been known to defendant in error.
Nor does it appear that he knew Weider was in the habit
of drawing drafts on the plaintiffs in error in his business, or
for any purpose.
In April, 1887, Weider met with several other persons,
among whom was the defendant in error, in a room at a hotel
in Springfield, and engaged with some or all of them in a
gamblinggame with cards called " poker." At the conclusion
of the play there was nothing due to defendant in error.
Weider was indebted to various other persons participating
in the game, and in order to pay them, Weider drew a draft
in his own name on the plaintiffs in error, and made the same
payable to the order of the defendant in error, for the sum
Second District — December Term, 1890. 125
■
Oberne, Hosick & Co. v. Bonn.
of $400. Welder delivered the draft to defendant in error
with the request that he get the money thereon, and when
obtained, pay the same to certain persons whom he named,
in various sams, which he speciiied.
In pnrsnance of such request, defendant in error indorsed
the draft, as such payee, obtained the money, and upon its
receipt paid it to the several persons designated by Weider,
as he had been requested to do, receiving no part thereof
himself. The draft was forwarded to plain titfs in error, and
by them paid without knowledge of its consideration or the
circumstances under which it had been drawn or negotiated.
The defendant in error had no interest in the draft, or in any
part of the money derived therefrom; his connection there-
with was that of accommodating payee only.
It does not appear that the defendant in error had any
knowledge that the monej^ to be obtained by the draft was
not the money of Weider, or that the plaintijQFs in error had
any interest or claim thereto, until long after it was in fact
paid to the several parties as directed by Weider, as before
stated.
The case was heard in the trial court with a jury, a verdict
obtained by the defendant in error, upon wliich judgment
was entered against plaintiffs in error for costs, to reverse
which this writ is prosecuted.
The principal errors complained of in the trial court were
as to the instructions given to the jury. The defendant
introduced no evidence but relied wholly as a defense to a
right of recovery by plaintiffs in error, upon the want of a
notice to the defendant at the time of the receipt and dis-
bursement of the money received from the draft, that it was
the money of the plaintiffs in error, in whicli contention the
trial court sustained the defendant in error and instructed the
jury accordingly.
We think the trial court held correctly, as the defendant
in error had no notice that the money or any part of it
belonged to plaintiffs in error, and the draft was drawn by
Weider as if the fund drawn against was his own, which the
Jaw presumes without notice to, the contrary. We think the
1 2G Appellate Courts op Illinois.
Vol. 39.] Oberne, Hosick & Co. v. Bunn.
defendant in error's relation to the transaction, so far as is
shown by the evidence, was that of a passive agent or stake-
holder for Weider, and that as such, defendant in error should
not beheld as liable to plaintiffs in error in this action, inas-
much as he did not retain any part of the money received
upon the draft, and had no notice of plaintiffs in error's
interest therein.
In this view the other errors complained of become unim-
portant. See Pettiton v. Hippie, 90 111. 420; Hill v. Hayes,
38 Conn. 532.
The case at bar is clearly distinguishable from that of
McAllister v. Oberne, Hosick & Co., determined at the pres-
ent term of this court. In that case appellant had notice by
the check that it was in fact drawn upon the funds belonging
to the appellees, and the appellant was also a participant in tlio
money obtained therefrom. In the case at bar defendant in
error had no such notice and was merely a stakeholder in
effect, in no manner participating in the benefits of the illegal
transaction.
The judgment of the Circuit Court is therefore affirmed.
Judgment ajirmed.
Upon Rehearing.
[Opinion filed June 25, 1891.]
Per Curiam. Having duly considered the question raised
by the petition for rehearing in this case, the prayer of said
petition is denied.
Plaintiffs in error have prayed that in case a rehearing
should be denied, a certificate of importance may be granted
in order that the plaintiffs in error may prosecute an appeal
or writ of error to the Supreme Court. A certificate of
importance must be prayed for within the same time allowed
by statute for taking an appeal to the Supreme Court, which
is limited to a period of twenty days after the rendition
of judgment in this court The final judgment in this case
was rendered in this court May 21, 1891, and more than
twenty days have elapsed since that time. Plaintiffs in error
Second District — December Term, 1890. 127
Wilson V. Dowse.
asked the jadgmeut of this court upon certain alleged errors
in its final judgment, by petition for rehearing, and during
the time necessarily occupied in the examination of the ques-
tions raised by that petition, the time allotted for applying
for a certificate of importance expired. Plaintiffs in error
had their election to either apply for a rehearing, or pray
for a certificate which would enable them to appeal, but
could not have both remedies unless both could be made
effective within the time allowed by statute for taking an
appeal. Tlie time within which a certificate of importance
may be prayed for having elapsed, this court can not now
entertain an application for such certificates. Sholty v.
Mclntyre (opinion filed January 10, 1S91), Sup. Ct. III. N.
E. Eep. Yol. 26, p. 655.
The application for certificate of importance is denied.
I 39 '27
Jane H. Wilson y^^«
V.
Stephen Dowse.
Agency — A ecounting — Master* s Report — Exceptions,
This co-irt declines, in view of the evidence, to interfere with a decree for
the defendant upon a bill filed for an accounting.
[Opinion filed May 21, 1891.]
Appeal from the Circuit Court of Will County; the Hon.
DouRAiiiCE DiBBLL, Judgc, presiding.
«
Mr. John C. Patterson, for appellant.
Messrs. Gaensky & Knox, for appellee.
Upton, J. This was a bill in equity filed by appellant
against appellee in the Circuit Court of Will County,
128 Appellate Courts of Illinois.
Vol. 39.] Wilson v. Dowse.
pravin^ for an acconntiDg, etc. The bill was filed December
1, 1887. Answer thereto being filed, and issue taken by
replication, the cause was referred to the master of that
court, to hear proofs and state an account between the parties
as prayed, etc. Proofs were taken and reduced to writing
by the master, and an account between the parties duly
stated, report being made, which, with the evidence taken,
was filed in the Circuit Court. By this report the master
found due to appellee (defendant below) from appellant
(complainant below) the sum of $202.43. Numerous excep-
tions were taken to the findings and report of thie master,
by him overruled, and the same were renewed in the Circuit
Court, and were then again heard and overruled, and a decree
entered in that court for the appellee for the amount so found
due by the master. To which appellant excepted and appealed
to this court.
It seems from the evidence taken by the master that the
appellant is the widow of one James H. Wilson, now
deceased, who in his lifetime was a resident of Lockport, in
Will County, and was engaged in loaning money. In such
business he was accustomed to employ appellee, who was a
justice" of the peace in that village, as he needed advice or
assistance. Upon the death of her husband appellant became
possessed of his estate, consisting in whole or in part of
notes and indebtedness due and to become due for moneys so
loaned, in the collection of which and reloaning the same
she employed appellee to assist her, and in so doing from
time to time notes due appellant were placed by her in the
hands of appellee to collect and reloan the money upon her
account, which from time to time appellee did, as requested,
sometimes paying the moneys received on collection directly
to appellant, and sometimes reloaning the same, taking
notes in her name and delivering the same to her, but no
general or specific account of these various transactions
was kept by either party, or settlement made, from the com-
mencement, in 1877, until the filing of the bill of complaint
herein in 1887. In 1880 appellant removed to the city of
Chicago to reside. In 1887 she demanded that appellee
Second District — December Term, 1890. 129
Wilson V. Dowse.
Biirrender all moneys, notes, demands and evidence of indebt-
edness due her, with an account of his receipts, disbursements
and expenses incurred or claimed by appellee in transacting
the business before stated.
Appellee thereupon surrendered to her all such nDtes,
securities and moneys in his hands or possession to her
belonging, as he claims, with a statement of his actings and
doings in such transactions, including an account stated of
receipts and disbursements of moneys and the amount due^
etc. This account was not ti-anscribed from any book of
accounts, for none wore kept by either party, but was made
from memory, aided by such data and memoranda as
appellee could obtain.
The account as rendered not being satisfactory to appel-
lant this suit was commenced, the proofs taken, and cause
heard, with the result above indicated. We have carefully
studied this record and the evidence and proofs therein con-
tained, in the light of the arguments of the respective
counsel, and from the large volume of evidence taken we are
not able, within reasonable compass, to review it in detail.
We shall content ourselves by the statement of one con-
clusion therein, merely:
Numerous exceptions were filed to the master's report, to the
overruling of which by the chancellor complaint is made, and
upon which alone the error is claimed for wliich this appeal
is taken, a few only of which we shall specifically refer to.
The firat exception is not well taken. The $24.57, taken as
the basis in stating the account complained of, seems to be
conceded to have been correct by the counsel for appellant,
in his argument, called "a letter" to the master, under date of
August 12, 1887, and he ought not now complain that the
master in stating the account adopted his theory. Besides,
upon close examination we are fully satisfied that both appel-
lant's counsel and the master were correct in taking that as the
basis of the account on August 12, 1887.
Fifteenth exception : Appellant insists that the allowance of
the sum of $438.34 to appellee, as credit for expenses from
YOJ^XXXIX 9
130 Appellate Courts of Illinois.
Vol. 39.] Wilson v. Dowse.
*
February 17, 1877, to January 4, 1880, etc., was a mistake of
the master, and not discovered by counsel until too late to be
availed of, etc.
In this appellant's, counsel is mistaken. The items com-
posing this expense account complained of appeared in the
account stated by appellant's accountant, Dyrenforth,as shown
by his deposition taken August, 1888. These items were
contained in the account rendered by appellee to appellant in
1887, and furnished the accountant, from which to make iho
statement of accounts by appellant.
The account as there stated by appellant, through her
accountant, Dyrenforth, was then admitted and claimed to be
correct by complainant, and it is too late now to question it
Besides, under the evidence we have no doubt of its correct-
ness.
The further claim that appellee should be charged with the
sum of $540, paid him July 3, 1882, by one Michael Schell, is
not sustained by the evidence ; it was not properly chargeable
to appellee. The evidence, we think, establishes the fact that
the complainant received that money liersclf ; it was paid lier
by appellee at the time of the execution of the release of the
mortgage by com])lainant given to secure the notes, as wo
think is fully shown by the evidence. The other errors
assigned in overruling exception to the master's report we
have also carefully examined, and from such examination
we find no error in the entire account as stated by the master,
or in the decree rendered thereon, and finding no error in this
record, that decree is affirmed.
Decree affirmed.
Second District — December Term, 1890. 131
Metz V. Wood.
Henry Metz
V.
Samuel E. Wood et al., for use, etc.
Agency — Commission Merchants — Balmxce Due — Recovery of-^Amend-
ment.
In an action brought by commiRsion merchants to recover a balance
alleged to b? due from defendant and another, this court holds that said per-
sons were individually liable therefor; that a certain amendment of the
dtclaration was proper, (hough made after verdict; and declines to interfere
with the judgment for the plaintiffs. '
[Opinion filed May 21, 1891.]
Appeal from the Circuit Court of Ogle County; the Hon.
JoHK D. Cbabtkek, Judge, presiding.
Messrs. M. D. Swift and W. & W. D. Baege, for appel-
lant
Messrs. J. W. Allaben and J. C. Setsteb, for appellees.
Upton, J. This action was assumpsit, commenced in the
Circuit Court of Ogle County by appellees against appellant
and Solomon Metz as defendants. The declaration contained
the common counts only, wherein appellees claimed Solomon
Metz and Henry Metz were indebted to them for stock, goods,
wares and merchandise sold, money lent and advanced, etc.,
and being so indebted promised, etc., amounting, etc., to
§238.68. The declaration was accompanied by an affidavit of
merits, etc., to which the defendants filed their plea of the
general issue and affidavit of meritorious defense as to Solomon
Metz, one of the defendants; a plea of statute of limitations
was also interposed and issue taken thereon. The cause was
heard in the Circuit Court with a jury. The appellees after
verdict dismissed the suit as to Solo^ion Metz, and he excepted
thereto. The jury returned a verdict for appellees against
Henry Metz in the sum of §238.68. After verdict rendered,
132 Appellate Courts of Illinois.
Vol. 39.] Metz v. Wood.
and upon motion for a new trial, appellees moved, and the
court allowed the declaration to be amended (to conform-to
the fact, after diemisBing the action as to the co-defendant,
Solomon Metz) therein, stating a causeof action against Henrv
Metz alone, to which lie excepted. A motion for a new trial
and a motion in arrest having been overruled, the Circuit
Court entered judgment on the verdict and the case was ap-
pealed to this court. The errors assigned challenge the action
of the trial court, in allowing the appellees to dismiss the suit
as to Solomon Metz and proceed to judgment against defend-
ant, Henry Metz, in allowing appellees to amend tlie dec-
laration in thel;ourt below after the verdict rendered, and in
refusing to grant a new trial, because the evidence claimed was
insufficient to warrant the verdict. Appellees were residents
of Chicago, engaged in 1884 and until the present as com-
mission merchants therein. During the years 1884 and 1885
they had dealings with some person called S. Metz, of Polo,
111.; received consignments of live stock in his name, but had
no personal acquaintance one with the other. Ilenry Metz,
appellant, in person accompanied the stock so consigned and
transacted the business; stated to appellees that he (the appel-
lant) was S. Metz and the owner of the stock so shipped, and
the money or proceeds upon the sale of the stock by appellees
was paid to appellant, believing him to be in fact S. Metz, the
consignor and shipper thereof.
Appellant, in the name of S. Metz, drew drafts upon
appellees, using the moneys obtained thereon supposedly in
the purchase of the stock shipped appellees, and it sometimes
occurred that the shipments to appellees of stock were not
sufficient to cover the full amounts of the drafts or advances
made therefor, and appellant would promise to pay the
diflFerence as soon as he could, saying that he was doing
business right along with appellees, and they need not be so
particular with him as to such overdrafts.
In the winter of 1886, appellant being indebted to ap-
pellees in the amount of f 238.68 for moneys due in the
business transactions aforesaid, conducted with appellant as S.
Metz, and being pressed for payment thereof, first informed
Second District — December Term, 1890. 133
-i
Metz V. Wood.
■
I ■ _ ■ ■ I ■ - - -
appellees that his name was Henry Metz, but that S. Met^ was
his brother, and engaged with him, appellant, in tlie business
transactions with appellees, and promised personally to pay
appellees the balance due them, which he admitted was
$238.68, but enjoined silence upon that subject stating that
his brother, S. Metz, had failed in business, and if the fact
was known that appellant paid appellees it might involve .
appellant in financial difficulty with the creditors of S. Metz,
his brother. Some time after this, appellees received a
written notice from S. Metz, or his assignee, to appellees, di-
rected as creditors of S. Metz, and upon the receipt thereof
appellees sent their traveling agent to Polo to ascertain its
meaning. The agent so sent by appellees met appellant in
Polo, informed him of the receipt of the notice by appellees,
and inquired wliat it meant. Appellant replied, ** I don't mean
Wood Bros.; they were always friends of mine, and I will
not beat them out of a cent." Appellant then promised to
ship stock, to appellees sufficient to pay the amount due on
the account claimed, and said that he, Henry Metz, owned the
stock shipped appellees prior to January, 1886; that he had
sufficient stock to cover the indebtedness then in the stock
yards, which he exhibited to the agent, and promised to ship
the same to appellees to satisfy their demand, etc. Appel-
lant further stated that his brother, 8. Metz, had been
engaged in the boot and shoe business at Polo, but that he,
appellant, had not been engaged therein; that appellees had no
business with the shoe store, and did not come under the head
of that failure, and admitted his liability upon, and promised
to pay appellees' claim. This in substance was appellees'
case as made by the evidence in the trial court, which in
greater part was contradicted by the evidence offered by
appellant; indeed, the evidence was utterly irreconcilable and
flatly contradictory, peculiarly a question for the jury to
determine as to the credibility of the witnesses, and they
found for the appellees in this contention, and after a
careful examination of this record we are unable to say they
were not sustained by the weight of the evidence in so
finding. Upon the question of fact under the well under-
134 Appellate CouRfs of Illinois.
t ■ _ . . ■
Vol. 89.1 Metz v. Wood.
stood rule of law we do not feel authorized to disturb the
verdict of the jnry. This will dispose of appellant's conten-
tion npon that point. It is claimed that the trial court was
in error in allowing the dismissal of the suit as to S. Metz,
and amendment of iha^ narr, by the striking out of the name of ^
S. Metz therefrom after verdict, upon the ground that the
action was a joint action against Solomon and Henry Metz.
and a recovery must be had against both or neither. Appel-
lees' proof heard in the court below would seem to estab-
lish the fact claimed by appellees, that the appellant claimed
to be the owner of the stock shipped and entitled to receive
the money therefrom derived on sale thereof, and that he
was, in fact, the S. Metz in whose name the stock was
shipped and consigned to appellees, and was, at least, doing
business in the name of S. Metz; and after the business was
wholly closed, and it was discovered by appellees that the
appellant was not in fact S. Metz, appellant claimed he was
carrying on and conducting business in the na;ne of S.
Metz, and that they were not individually, but were jointl}^,
liable therefor. But appellant's evidence as a witness on
the hearing below was explicit that he had no interest in the
stock shipped, out of which the indebtedness to appellees
accrued, and hence obtained the money, •etc., under false
pretenses. This being the state of the case, both Solomon
and Henry Metz would be liable to appellees for the amount
due them in this suit, not jointly, but individually and sever-
ally. Solomon, because, as he testifies, he in fact received the
moneys from the cattle shipped to the appellees, and that it
was his individual transaction and personal business, and
Henry would be liable to appellees therefor, because the
moneys were procured and the business was done and credit
obtained by himself, claiming to be the principal, and, in fact,
the S. Metz, shipper and actual owner of the cattle or stock
shipped, and upon such representations induced advances to
be made by the appellees on appellant's promise to repay the
same on further shipments of stock to them by him there-
after made.
If we are correct in this view the liability was not shown
Second Distkict — December Term, 1890. 135
Brownlee v. Village of Alexis. »
bj the evidence to have been a joint liability, but several, and
under the present statute of amendments the trial court
committed no error in allowing the amendments complained
of, even after verdict. No wrono; is perceived to have
been done appellant thereby of which he could be heard to
complain. It is not claimed that he could procure other, or
further evidence upon the facts then in issue. He had the
opportunity of having all he offered heard, and we think
substantial justice has been done in this case, and perceiving
no error in the giving or refusing of instructions as offered,
refused or modified, or in amendments allowed, or dismissal
of parties to this proceeding, or in entering of judgment
upon the verdict rendered, the judgment of the Circuit Court
must be affirmed.
Judgment affinntd.
39 i:«
39 135
William L. Brownlee ^ '^^
V.
The Village of Alexis.
Municipa I CorporaUotis — Negligence— Defeciice SidewaVc — Persona I
Injuries — Notice — Eviden ce — Instruct ion s.
1. A raunicipality must use reasonable diligence and care to keep its
sidewalk in a reasonably safe condition.
2. Notice of the unsafe condition of a sidewalk may be implied if the
defects complained of have existed for such a length of time that the munic-
ipal authorities, or any of its ofhcers and agents whose duty it is to give
notice thereof to the city, by the exercise of reasonable care might have
known of such defect.
8. It is not necessary to a recovery that a municipality should have had
notice of the condition of the particular plank which caused the injury in
question.
4. Notice to a street commissioner is notice to a municipality.
5. Where repairs are made by a municipality to a sidewalk, it is bound
to take notice of the character of the same, and the condition of the walk
when repaired, whether safe or unsafe.
136 Appellate Courts of Illinois.
YoL. 39.] Brownlee v. Village of Alexis.
6. Actual or constructive notice is not required in cases of defective
construction, whether the defects exist in method or material.
7. In the case presented, this court holds that evidence of the condition
of the sidewalk in question shortly previous to the accident should have
been admitted, also as to portions thereof distant from the point where the
injury pccurred.
' [Opinion filed May 21, 1891.]
In error to the Circuit Court of Warren County; the
Hon. John C. Bagby, Judge, presiding.
Messrs. Kirkpatriok & Alexander and James M. Wilson,
for plaintiff in error.
It is claimed that defendant had neither actual nor con-
structive notice of the condition of the walk, and hence was
not liable. In Hearn v. Chicago, 20 III. App. 252, it is held
that notice of the unsafe condition of the walk might be
implied if the defect existed for such a length of time that
the authorities of the city by the exercise of reasonable care
and diligence might have known of it. So in Sheridan v.
Hibbard, 19 III. App. 421, it is held that if the walk had
been out of repair for a sufficient length of time that the city
authorities, in the exercise of reasonab'c care and ])rudence,
ought to have known the fact, that would be notice. And
such is the doctrine of Aurora v. Dale, 90 111. 46, and Aurora
V. Hillman, 90 111. 61, and many other cases unnecessary now
to refer to.
We contend we have fairly brought ourselves within the
principle of these cases. It was not necessary that the village
authorities should have actual knowledge of the looseness of
the particular plank which happened to occasion the injury.
Weisenberg v. Appleton, 26 Wis. 59. In Troxel v. Vinton, 41
N. W. Rep. 5S2, it it said: " This is a case like many others
where a defective walk — known to be so — but not regarded as
dangerous, is used for a time with safety, and then for some
cause that is not and could not be anticipated, an accident
results." In Aurora v. Hillman, 90 111. 61, plaintiff and many
others had been in the habit of passing over the walk where
the injury occurred, often, and in Sheridan v. Hibbard, 19
111. App. 421, the facts were that four pei'sons were walking
Second District — December Term, 1890. 137
■ — .1.1 I ■ ■
Brownlee ▼. Viilafl^ of Alexia.
together two and two. The first two passed safely, bat the
last two, one of whom was plaintiflF, did not. Yet in neither
case did the facts stated prevent a recovery. So it is in all
cases of this nature, especially in cases arising out of defects
occasioned by decay; for a time there is safety, for a time
reasonably so, but tlie end comes and danger follows, and
even then many may pass and repass without hurt. It was
contended that the village officers were under no more obliga-
tion to find defects in the walk than plaintiff was. In Kewanee
V. Depew, 80 111. 119, it is said that "had plaintiff not known
the defect he might probably have been justified in assum-
ing tliat the walk was safe, and in acting upon that hypothesis."
And in Davenport v. Ruckman, 37 N. Y. 678, it is said : " The
streets and sidewalks are for the benefit of all conditions of
people, and all have the right, in using them, to assume that
they are in good condition, and to regulate tlieir conduct upon
that assumption. A person may walk or drive in the dark-
ness of the night, relying upon the belief that the corpora-
tion has performed its duty and that the street or the walk is
in safe condition. He walks by a faitli justified by law, and if
his faith is unfounded and lie suffers an injury, the party in
fault must respond in damages."
If tlie members of the board did not possess the requisite
skill to discharge the duty of inspection, then it was their
duty to provide some one possessing such skill. Thompson
on Trials, Sec. 1757. When a bridge has stood for the time
timbers are expected to last, and it may be reasonably
expected that decay has set in, it is negligence to omit all
proper precautions to ascertain 'its condition. In such a case
appearances will not excuse the neglect. 2 Thompson, Negli-
gence, 796, citing Raphe v. Moore, 68 Pa. St. 404. In Mc-
Leansboro v. Lay, 29 III. App. 478, it is said: "It appears
this walk had been built a length of time sufficient for the
city authorities to have learned how it was constructed and
the kind of materials used, and under the circumstances, no
other notice of its condition would be necessary. Ordinary
observation was sufficient to inform the city authorities that
the walk constructed as it was and with such material as was
138 Appellate Courts of Illinois.
Vol. 39.] Brownlee v. V.ilage of Alexis.
used mi^ht not be reasonably safe." So in Wheaton v.
Iladley, 30 III. App. 664, the court say: "When a sidewalk
has stood as long as this one and become rotten from exjjosure
to the weather and time, the authorities ono;ht to be held to
have constructive notice of its condition, for with reasonable
care such condition could be easily ascertained." And in
Sheridan v. Illbbard, 19 111. App. 459, it is said that it was
the duty of the village " to use ordinary care and diligence in
the erection and maintenance of its sidewalk's," and it was
held that this duty includes discovei*y of the defects in a side-
walk. Many other cases might be cited to the same effect.
This duty of inspection and care, then, was one that the board
could not without fault neglect.
Crossley and McBride, agents of the village, knew the
exact condition, or were ignorant through negligence.
Knowledge on the part of the street commissioner was notice
to the village. Fuller v. Jackson, 46 N. W. Rep. 721. As
was well said in Wheaton v. Hadley, 30 111. App. 564, "it
was evident that the walk could not be placed in a good sound
condition without new material." The village, in causing
these repairs to be made in the manner they were done, was
guilty of gross negligence. Chicago v. Herz, 87 111. 541.
" There is no question but that those in cliarge of the walks liad
full knowledge of that fact, and attempted to repair the same
about three weeks before the injury to appellee. It appear
that some new boards were substituted for others decayed,
but no new stringers were put in. The proof tended to
show that the walk was not in fact repaired so as to render
the same safe and in good re'pair and condition. If this was
80, the municipal authorities are chargeable with notice of it.
If the authorities attempted to repair this walk, and, as the
evidence attemjited to show, the stringers were so decayed
as to be incapable of holding the nails with which the boards
constituting the walk were intended to be fastened, tlie
authorities must have known it. If the town had laid a
new walk out of defective material, from which an injury
resulted, the town would have been chargeable with notice of
the defect. So, in this case, if the authorities, having botli
Second District — December Term, 1890. 139
Brownlee v. Village of Alexis.
actual and constructive notice of the defective condition of
the walk before the repairs were made, so made the re])airs
that the walk was left in unsafe condition and repair because
of the defective material therein, they would be liable for
injury resulting from such defect." Wheaton v. Iladley, 23
K E. Eep. 423, 131 111. 640. If the city caused the work
to be done, it was bound to take notice of its character and of
the walk, whether safe or dangerous. Chicago v. Brophy, 79
111. 277. Neither actual nor constructive notice is required
to be shown in cases of defective construction. Village of
Mansfield v. Moore, 21 111. App. 326. If the road officers
])atch up a rotten bridge with a view of making it last until
the next spring, they become quasi insurers of travelers wlio
use it in the meantime.. 2 Thompson on Negligence, 796,
citing Humphreys v. Armstrong Co., 56 Pa. St. 2u4. These
authorities in addition to those already cited, as we think,
abundantly sustain our position, not only upon the point
under discussion, but also show erroneous rulings, on the part
of the court, upon the admission and rejection of evidence
and upon the instructions.
Messrs. Pepper & Scorr and Geiee & Stewart, for defend-
ant in error.
As to the law, we have no contest with rule of law as
established in cases referred to by counsel. .In Alexander v.
Mt. Sterling, 71 III. on page 368, the court say : " Had this
sidewalk been repaired but a few days before the accident it
would go far to exonerate the defendant from the charge of
negligence." And if there had been evidence to sustain it,
the court would have held the instruction good. And there
the walk was defectively constructed. In the case of the
Village of Sheridan v. Hibbard, 19 111. App. 429, the court
holds that an instruction that says that " the village is bound to
use ordinary reasonable care and diligence," is good law. The
walk in that case was made of inch boards; they were
broken and split; had been down for four, five or six years,
had always been out of repair and no attempt made to look
after it or repair it; there was no fault in stringers. In the case
140 Appellate Courts op Illinois.
Vol. 39. J Brownlee v. Village of Alexis.
of City of Aurora v. Hillman, 90 III. 61, the stringers were
rotten, would not hold nails and had been so for a long time;
had been bad for years; the street commissioner said it was
bad and the authorities had been notified, and no attempt had
been made to repair the walk or make it safe. In the city of
Aurora v. Dale, 90 111. 46, the sidewalks were bad in every
direction and had been so so long that the authorities ought
to know it, and no evidence was offered to show that any
care was used, any repairs made, or anything done for the
protection of the citizens. The law in that case, and appli-
cable to the case at bar, is laid down as follows : " If tlie
M'alks are properly constructed the authorities have the
right to presume they will remain safe until long use or
natural decay make tliem unsafe, and then, until notice is
given or long delay has transpired after they become appar-
ently unsafe, there is no liability for accidents, and sufficient
time must elapse after notice to make repairs." The case of
Hearn v. The City of Chicago, 20 111. App. 246, shows that
the construction was bad in the beginning. In the case of
Troxel v. Vinton, 41 K TV. Reporter, 582, the walk had
been out of repair for nearly a year and the officers of the
citv had been notified thereof.
Doubtless the law quoted from Thompson on Negligence
is good, but has no application to a case where the super-
visory officers are going over it and repairing every visible
defect and every defect that can be found on examination.
In McLeansboro v. Lay, 29 III. App. 478, the walk was con-
structed of old plank; they soon rotted at the ends; would not
hold nails; had been built a long time; the city officials had
looked at it and saw the defects; the man sent to repair it
was ordered to nail down the rotten boards, when new ones
should have been put in. In the case of Kewanee v. Depew,
80 111. 119, the boards were but inch material; had been
there so long that a hole had rotted in the board in plain
sight large enough for a person's foot to go through, and no
one had looked after it or attempted to repair it. The case
of the Town of Wheaton v. Hadley, 30 III. App. 564, is the
ca^e counsel are arguing, and they insist that the facts of that
Second District — December Term, 1890. 141
Brownlee v. Villaare of Alexis.
case arc the facts in this ease, when there is not a shadow of
semblance between them. In onr case there was no sagging
of the walk, not a single decayed board, not a decayed spot
in the whole of the last laid stringers, or if one, only the one
presented by the exhibit, and that not found where the board
tripped up with plaintiff.
Upton, J. This was a suit bj the plaintiflE in error to
recover damages for injuries received on account of the alleged
defective condition of a sidewalk in the defendant village.
The alleged facts, which seem to be sustained by the evi-
dence, are, in brief, that on the morning of July 1, 1889,
plaintiff in error was traveling over a sidewalk in the defend
ant village, which it was bound to keep in repair, from the
business portion thereof to his dwelling place situate therein,
accom))anied by his two daughters, the one six and the other
about thirteen years of age, plaintiff in error carrying in one
hand a scythe and hoe and in the other a package of coffee,
the elder daughter walking by his side and the younger a few
steps in advance. Near the steps of the United Brethren
Church in that village, the elder daughter — walking on the
outside — stepped on the end of a loose board or plank, of
which the sidewalk was in part composed, which flew up,
tripped the plaintiff in error and he fell upon the scythe,
splitting his left hand open between the fingers nearly to the
wrist, by which injury he is permanently disabled. The fact
as to the injury, the extent and manner of its occurrence, is
conceded. No claim is made that plaintiff in error was negli-
gent, or that he in any way contributed to the resulting
injury.
The only question involved in this contention now is, was
the defendant in error guilty of negligence in not keeping its
sidewalk at the time and place when the injury occurred in a
reasonably safe condition, for the use of a person traveling
upon it, using due care, and if the same was not in such re-
l^ir, had defendant in error actual or constructive notice (by
lapse of time or otherwise) of such defect.
If an aflii'mative answer be given, then the judgment of the
142 Appellate Courts of Illinois.
Vol. 89.] Brownlee v. Village of Alexis.
Circuit Court should be reversed; if Id the negative, that judg-
ment must be aflii-med.
In the Circuit Court a verdict and judgment was rendered
against the plaintiff in error. He brings the suit to this court
by writ of error, and complains that the trial court erred in
refusing evidence offered on behalf of plaintiff in error, in
modifying the instructions offered by plaintiff in error, and
in giving erroneous instructions to the jury in behalf of the
defendant in error, in excluding proper evidence offered by
plaintiff in error and in refusing a new trial. The controversy
in the trial court was purely one of fact, sharply contested
on both sides; the evidence was conflicting, and consequently
it became important that the jury should have been accurately
instructed as to the law of the case.
It might not be proper for us to discuss in detail the testi-
mony in this record, in the view we take of the case, but a
mere reference to some of the established or undisputed facts
may be allowed, to the. better understanding and applications
of the principles hereafter stated. The walk in question has
been in use for a period of thirteen or fourteen years,
and is situate upon one of the main streets of the village of
Alexis. It was originally constructed of two-inch pine plank
placed upon and nailed to pine wood stringers two by six
inches, laid upon the ground.
Some six or seven years prior to tlie injury the walk had
been relaid by the village authorities; in so doing some new
material and some of that taken from the old walk was used,
planks as well as stringers.
The Old stringers were then more or less decayed; those
then unfit for use were replaced by new ones, but what pro-
portion of the old stringers were used in relaying the walk
does not appear. The planks in this walk near where the
injury occurred had become loose in consequence of the
stringers not holding the nails, either from decay or use, and
the street commissioners of the village, pursuant to its orders,
had notice of such defects several times within a few months
prior to the injury, and had examined the walk and attempted
to and, as they supposed, had repaired such defects by nailing
Second District — December Term, 1890. 143
Brown lee v. Yillnge of Alexis.
the loose plank down, but without examination of the con-
dition of the stringers to determine whether they were decayed
or otherwise. These repairs last mentioned were commenced
by one Crossly, acting street commissioner of the village, on
the 2Tth of April, 18S9, who in |.:assing over the walk found
several loose piank near where the injury subsequently
occurred, and ho nailed the loose plank to the stringer, and ho
testified that the nail did not drive as if the sill or stringer
was solid at that time; and he further testified that the cause
of the planks being loose was that the nails drew out of
the stringers. »
About the middle of «[nne, 1889, one McBride, then street
commissioner of the village, carefully examined this walk, and
then found a number of plank loose near where this injury
complained of occurred, and he also nailed the plank down
found loose. Again, about ten days thereafter, and shortly
prior to the injury, he went over and examined the same walk
again, for the purpose of repairs, and then found loose
planks in that walk and again nailed them down, and ho Fays
the occasion of the planks being loose was that the stringers
did not hold the nails. Six or seven other witnesses testified
tliat they passed over the walk in question varying from
one day to six weeks prior to the injury; that they saw loose
planks in the immediate vicinity of where the injury occurred,
some of these witnesses were tripped by the loose plank in
the walk as they testify.
To rebut this, much testimony of facts and circumstances
was heard, a large part being negative in character.
The rule of law is, that notice of the unsafe condition of a
sidewalk may be implied, if the defects complained of have
existed for such a length of time that the municipal authori-
ties of the city or village, or any of its officers or agents
whose duty it was to give notice thereof to the city, by the
exercise of reasonable care and diligence, might have known
of such defect. Hearn v. Chicago, 20 111. App. 249; Sheridan
V. Hibbard, 19 111. App. 442; Aurora v. Dale, 90 111. 46;
' Aurora v. Hillman, 90 111. 61. Nor was it necessary to a
recovery that appellee should have had notice of the condition
144 Appellate Couets of Illinois.
Vol. 39.] Brownlee V. Village of Alexis.
of this particular plank which occasioned the injury. Weis-
enberg v. Appleton, 26 Wis. 59; Aurora v. Dale, supra.
Notice of the condition of the walk and the soundness or
unsoundness of its materials to the street commissioners was
notice to the village. Fuller v. Jackson, 46 IT. W. R 721;
Wheaton v. Hadley, 30 111. App. 564.
The case last cited is in many of its facts similar to the case
at bar.
The repairs being made by the village, of the walk in
question, it was bound to take notice of the character of the
repairs and the condition of the walk when so repaired?
whether safe or dangerous. Chicago v. Brophy, 79 111. 277;
Chicago V. flerz, 87 III. 541.
Neither actual nor constructive notice is required in cases of
defective construction, whether such defects exist in method
or material. Village of Mansfield v. Moore, 21 111. App. 326;
Wheaton v. Hadley, s^ipra. We think the trial court erred
in confining the plaintiff's evidence to that particular part
of the walk in question where the injury occurred. Weisen-
berg V. Appleton, 26 Wis. 56; Sheridan v. Hibbard, supra;
McLeansboro v. Lay, 29 111. App. 478; Aurora v. Hillman?
supra; Chase v. Chicago, 20 111. App. 274; Shaw v. Village
of Sun Prairie, 42 K W. R. (Wis.) 271. The trial court erred,
we think also, in not allowing the witness, Charles Clute,
called by plaintiff in error, to testify as to notice by the vil-
lage authorities of the bad condition of the walk in question,
arid its need of new material for its repair in 1888. It was
not so remote under the evidence as to warrant the court in
excluding it from the jnry. Chicago v. Bixby, 84 111. 85;
Chicago V. Herz, supra; Chicago v. Crooker, 2 111. App. 279;
Aurora v. Dale, 90 111. 48; Aurora v. Ilillman, 90 111. 64.
We are also of the opinion that the trial court erred in
modifying plaintiff in error's instructions numbers two,
five, seven, nine and fifteen, and giving the same to the jury
as modified.
The law is, as we understand it, that municipalities are
rec^uired to use reasonable A\V\^qi\cq and care to keep its side-
walks in a reasonahly safe condition.
Second District — December Term, 1S90. 145
Edwards v. Martin.
|— ^- ■ I ■ -■ ^^ ^^ ■■■■!■ _ ■! _ 1 ■ _l ■ I . II' I ~ - ■ ■ ■ .
The instructions as modified informed the jury that such
walks were required to be kept in ordmarily good and safe
condition. Tlie distinction between what is reasonahle and
what is customary must be apparent.
We think the trial court was in error in its modification of
plaintiff in error's instructions numbers thirteen and fourteen
as modified and read to the jury. We think they were mis-
leading. We are also of the opinion that the trial court
erred in reading and giving to the jury the defendant in
error's instructions numbers eight, nine and ten, and that the
same were misleading.
We have carefully examined this record in the light of the
able arguments of the learned counsel for the respective
parties, and we are clearly of the opinion that the verdict in
this case can not be supported by the evidence in this recoid.
The judgment of the Circuit Court is therefore reversed,
and the cause is remanded for further proceedings not incon-
sistent with the views above expressed.
Reversed and remanded.
Lydia a. M. Edwards, Administratrix,
Hannah E. Martin.
Hushnnd and Wife — Ante-nuptial Contract^Construction of— Widow's
Award.
1. Marriafsre is a sufficient consideration for an ante-nuptial contract
fairly and understandinRly entered into.
2. A wife may waive any and all riorht to. any portion of her husband's
estate by such agreement and be bound thereby, where fraud, collusion,
overreaching or advantage taken can not be shown.
3. In the case presented, this court holds that under the agreement in
question the widow was not entitled to widow's award in her husband's
estate, and that the judgment in her favor can not stand.
[Opinion filed May 21, 189].]
Vol. XXXTX 10
146 Appellate Courts op Illinois.
■ I ■' ■' ■■■■■■111 m^^^^, ■■■■■■■ ^^^^^^M^^^i^i^i^^.*— ■^—W ■ ■ — 1— »— ^— ^— ^'
Vol. 39.] Edwards v. Martin.
Appeal from tlie Circuit Court of Kanu Oountj; the Hon.
Isaac G. Wilson, Judge, presiding.
Messrs. Shebwood & Jones and J. W. Kanstead, for appel-
lant.
It is said in the appellee's answer, that she has received
no consideration for the waiver of her widow's award, and for
that reason the contract is not obligatory on her. A similar
defense was set up to defeat an ante-nuptial contract in the
case of McGee et al. v. McGee et al., 91 111. 548, where the
question was whether the contract barred the widow's dower
and homestead. There were minor children in that case and
it was held that the widow was entitled to a homestead, but
not to dower; and the court said : " Anotlier point made is,
the husband parted with nothing that had belonged to him
which the Intended wife could accept in lieu of dower, and for
that reason, it is said, she could not be barred from claiming
dower in the lands of her husband, as given by statute, either
in law or in equity. The objection rests upon a misappre-
hension of the legal effect of the contract. It will be
remembered the agreement was made in 1857, in contempla-
tion of a marriage soon to take place between the contracting
parties, and ancillary to that event. In the agreement it was
recited that both parties were then the owners of real and
])ersonal property, and that the intended wife, as heir of
Horace Lender, would be entitled to other property, real, per-
sonal and mixed. As the law then was, the husband, on the
consummation of the marriage, would succeed to the absolute
ownership of the personal property of the wife, and would
also be entitled to curtesy in his wife's real estate, as well as
the usufruct thereof. Thus it is seen the husband relin-
quished all the right which, by the marriage, he might have
acquired over the estates of his wife, and, in consideration of
his agreements, she also released all rights in the estate of her
intended husband, which the law would cast upon her in con-
sequence of the marriage. It is conceded the husband,
during his lifetime, abided by his part of the agreement, and
that each of them " owned and managed their separate prop-
Second District — December Term, 1890. 147
Edwards v. Martin.
erty. The contract is in our judgment, a reasonable one. It
is one that persons advanced in life could with great propriety
make," etc.
In the present case the appellee had considerable property
of her own. If there had been no contract, and the appellee
had died before Mr. Martin, he would have been entitled to
the homestead and dower in the real estate and to one-third
of her personal property; this right he relinquished by the
contract. This was, in itself, a good and sufficient consid-
eration. In Barth v. Lines et al., 118 111. 374, where the
widow claimed dower, notwithstanding an ante-nuptial agree-
ment similar to the one here, it was urged that the intestate
had surrendered nothing to the widow as a consideration of
the release of her dower; in that case the widow owned real
estate worth about $2,000, and had some personal property.
The court said : " By the agreement he released all claim to
the interests wliich the law would thus liave given him in her
estate, and empowered her to dispose of it by will from any
dower rights therein, on his part. She made the same relin-
quishment to him of whatever interest the law would pive
her in any of his property. He was a farmer, and she kept a
store; each was to control and manage his or her own prop-
erty, free from any interference by the other." It was held
that the agreement barred the widow's dower.
In these cases, as will be seen, it was held that an agree-
ment on the part of the intended husband to release all claims
in his wife's property was a. sufficient consideration for her
agreement to release her dower in his real estate. Wliy
should not such an agi*eement be a good consideration for the
release of the widow's award also ? If the contract binds
the widow in one case, why not in the other, when there are
no children interested? In McMahill v. Est. of McMahill,
113 III. 461, and in Spencer v. Boardman et al., 118 111. 663-
668, the rule of law is settled that where there are no chil-
dren who have an interest in the award, and where the widow
by an ante-nuptial contract fairly made has waived her right
to tlie award, she will be bound by the contract.
In the present case the appellee's agreement was, in case
148 Appellate Courts of Illinois.
Vol. r>9.] Edwards v, Martin.
she should survive her husband, to release " all right of dower
and all right of support or claim or interest of every kind or
description " in his estatCj-and it " shall be right and lawful for
him or his heirs, executors, administrators or assigns, to take
possession of all that remains of the above said property, and
dispose of the same, independent of the party of the second
part forever." This is broad enough to include the widow's
award.
Messrs. Thomas J. Rushton and Henry E. Willis, for
appellee.
Appellant says in hunting for a consideration for the
contract, the burden of which is on her to establish, that if
there had been no contract, and appellee had died first, that
Martin would have been entitled to the liomestead and dower
in the real estate and one-third of her personal property. This
right he relinquished by the contract, which was in itself a
good and sufficient consideration. To refute the statement or
exhibit the fallacy of appellant's theory in that particular we
call the court's attention to a case cited by appellant,, wherein
it is decided that "the policy of the law in relation to home-
steads is to preserve the same for benefit of the family, and
not allow the same to be defeated by any ante-nuptial con-
tract McGee et al. v. McGee et al., 91 111. 648; McMahill v.
McMahill, 105 111. 596.
Appellant's counsel says that *Hhe rule of law is settled that
where there are no children who have an interest in the
award, and where the widow by an ante-nuptial contract fairly
made has waived her riglit to the award, she will be bound by
the contract.
Appellee says: "The rule of law is settled that a widow is
entitled to the award, children or no children."
'* Section 74, chapter 3, of the statute allowing said award
to the widow, says it shall be her sole and exclusive property
forever, and it applies to any widow. She need not liave any
family to get the award, but she is to receive more if she has
a family; and the amount is graduated according to the size of
the family; but the award, whatever may be the amount.
Second District — December Term, 1890. 149
Edwards v, Martin.
belon«^8 to the widow as her sole and exclusive property."
McMahill v. Estate of McMabill, 113 III. 467.
We contend that a widow entitled to an award can not be
deprived of the same by an ante-nuptial contract unless fairly
made, and fairly made means for a valuable consideration in
lieu thereof. The love, ajffection or society of a husband,
young or old, is no valuable compensation for the waiver
thereof; and that or something equally intangible is the only
consideration deducible from the evidence of appellant in
this case as the consideration flowing from the said Freeman
Martin to appellee in said contract
Appellant's counsel contends that the marriage of Mr.
Martin with Mrs. White alone constitutes a consideration for
waiving her award or operates as an execution of the contract.
Marriage usually carries with it certain financial responsi-
bilities; her counsel contends in effect that they are avoided
in thiscase, and for nothing, or without valuable consideration;
and says that the same objection might have been made to
many ante-nuptial contracts, witliont citing a single authority;
and that in the face of the authorities that say it is against
the policy of the law to allow an ante-nuptial agreement to
defeat the widow's award, unless there is a full and adequate
compensation for the same. Chap. 30, Sees. 70,74, 75 and 76
E. S.; Plielps v. Phelps, 72 111. 545; McGee v, McGee, 91 111.
548; McMahill v. McMahill, 105 111. 596; Strawn v. Strawn,
53 111. 263; Weaver v. Weaver, 109 111. 225.
The only cases cited by the appellant that have any direct
relation to the widow's award are McMahill v. McMahill, 113
111. 401, and Spencer v. Bordman, 118 111. 353-358, and the
contracts there passed upon or adjudicated both provide for a
money consideration in lieu of the award, which sums in lieu
thereof the parties entitled to accepted after the awards had
accrued under the statute, so that no cases relied upon by the
appellant liave any application to the case at bar. Upon
appellant's hyiK)the6is appellee contends that the language of
the conti'act in this case does not cover the widow's award;
that the term "support" used in the contract can not be made
to mean an award which did not come into existence untii the
death of Martin; that the contract was at best only executory
150 • Appellate Courts of Illinois.
Vol. 39.] Edwards v. Mnrtin.
and might be repudiated by her. Weaver v. Weaver, lo9
111. 234.
An ante-nuptial contract, to be binding on the widow, must
be fair and just, and it must affirmatively appear that no advan-
tage was taken of the weaker party at the time of the execu-
tion. Rockafellow v. Newcomb, 57 111. 186; Kline v. Kline,
57 Pa. 186; Shea v. Shea, 1 Lawyer's Report, 422, Pa. case;
Tierman v. Reims, 92 Pa. 248; Ludwig's App.,101 Pa. 535.
C. B. Smith, P. J. This is an appeal from the Circuit
Court of Kane County. The object of tliis j)rccecding is to
have the court construe an ante-nuptial, or, as it is called in
the record, a "special marriage contract," between Freeman
Martin and Hannah E. White, entered into and executed by
them on the date of their marriage.
The followmg is a copy of the contract:
" A special marriage contract between Freeman Martin, ot
the first part, and Hannah E. White, of the second part.
Thus : That if the said H. E. White should be removed by
death before or at the same time of the said F. Martin, the
said F. Martin does bind himself, his heirs, executors, adminis-
trators and assigns, tliat he will release all right of dower and
all right of support or claim or interest of every kind or
description to any part of said Hannah E. Martin's property
thereafter owned by her at the time of our marriage, or accu-
mulated from the same thereafter, forever. And it shall \ye
right and lawful for her or herheirs, administrators, executors
or assigns to take po.'^scssion of all that remains of the above
said property and dispose of the same independent of the
party of the first part forever.
And also the said Hannah E. White, of the second part,
does bind herself, her heirs, administrators, executors and
assigns, that if said F. Martin should be removed by death
before or at the same time of the said H. E. White, that she
will release thereafter all right of dower and all right of
support or claim or interest of every kind or description
thereafter to any part of said Ficeman Martin's property
owned by him at the time of our marriage, or accumulated
from the same, forever.
Second District — December Term, 1890. 151
Edwards v. Martin.
And it shall be right and lawful for him or his heirs,
executors, administrators or assigns to take possession of all
that remains of the above said property and dispose of the
same independent of the party of the second pnrt, forever.
And under these conditions we, Hannah E. White and
Freeman Martin, agree to be married hereafter.
In witness thereof we individually sign our names and
affix our seals this 30th day of November, in the year of our
Lord one thousand eight hundred and eighty-six.
Freeman Majbtin, [seal.]
Hannah E. White. [seal.]"
At the time of the execution of this contract Freeman Martin
was a widower about sixty-five years of age, and had some
five or six children by a former wife, and was possessed of
an estate (chiefly in money) of the value of about $7,700.
At the same time Hannah E. White was a widow of sixty-
four years of age, having also children by her former hus-
band, and also possessed of some property (a house and lot,
among other things) in her own right. Immediately after this
contract was signed the parties were married, and lived
together until the death of Freeman Martin in December,
1887.
The widow waived her right to act as administratrix of
her husband's estate, and Lydia Edwards, the appellant, was
appointed. Appraisers were appointed, who appraised the
chattel property and made the widow's award, affixing it at
$779.65. Appellee afterward made her relinquishment and
selectionj and selected $9.65 of the property, and elected to take
the remainder of $770 in money.
The administratrix being in doubt about the right of the
widow to this award under the terms of this marriage con-
tract above set out, declined to pay it, and thereupon filed a
petition in the County Court, setting up the contract and ask-
ing to have the court construe it and to determine whether
under its terms appellee was entitled to the widow's award.
Appellee answered the petition and admitted the execution of
the contract and the marriage, Freeman Martin's death, her
award and selection, etc., but makes a very feeble effort to
] 52 Appellate Courts of Illinois.
Vol. 39.] Edwards v. Martin.
avoid the force and effect of the contract, by averring in her
answer "tliat on the same day, and before the marriage cere-
mony was performed, the said Freeman Martin presented a
contract to her that had been prepared by him, or some one
in his employ prior to that time, for her signature; that with-
out examining the contract, and not knowing prior to that
time wliat the terms of the contract were, and under the excite-
ment of the occasion, she signed the contract." She further
avers that she did not intend to release her widow's award
and that she is advised that the contract could not have the
effect to take from her the widow's award under the statute.
Tliere were no children born of this marriage.
The case was heard before the County Court, where the
award was allowed to stand, and upon appeal to the Circuit
Court the order of the County Court was affirmed, and
appellant now presents her further appeal to this court and
insists the Circuit Court erred in construing this contract.
On the trial in the Circuit Court there was no proof offered
in support of the answer showing that any fraud or ad vantage
had been taken by appellee in the execution of the contract or
that she did not fully understand it and know its contents when
she signed it. Counsel for appellee, however, insist that inas-
much as this answer was sworn to it must have the same effect
as evidence as a sworn answer in a chancery proceeding.
But we can not concur in this view. This proceeding was
in no sense a proceeding in chancery, where the answer could
have the effect of evidence, but even if it could it would not
aid appellee, for she does not say in her answer tliat she did
not know the contents of the contract when she in fact
signed it.
The only thing before us, then, is to determine whether by
the terms of the contract appellee waived any and all right to
any portion of her husband's estate. We think there can
be but one possible answer to this question, and that is that
she did waive all interest in her husband's estate, and upon a
sufficient consideration. Marriage itself is a sufficient con-
sideration for an ante-nuptial contract fairly and understand-
ingly entered into. But in addition to that there was the
Second District — December Term, 1890. 153
Edwards v. Martin.
additional consideration moving to both contracting parties of
mutual relinquishment of all interest in each other's estatfC.
Wliat the effect of this kind of a contract would have been
upon the right of tlie widow to her award in case there had
been children born of the marriage, and who in that event
would have had an interest in the widow's award, as being for
the benefit of the family, under the statute, we express no
opinion, since that \kind of a question is not presented in this
record. Here no rights are involved except those of the
widow herself, and we entertain no doubt about her right to
contract against such claims by an ante-nuptial agreement,
where no fraud, collusion, overreaching, or advantage taken,
is shown by the proof. Earth v. Lines, 118 III. 374; McGee
V. McGee, 91 111. 548; McMahill v. McMahill, 113 111. 461;
Spencer v. Board man, 118 111. 553.
This class of contracts, however, should always be carefully
scrutinized and watched by the court because they are fre-
quently made under circumstances favorable to the stronger
party, and under circumstances where the affections or
dependent condition of the weaker party are liable to get the
better of her judgment, and she is induced thereby to enter
into contracts contrary to public policy, or to accept terms
that are unjust and unconscionable.
In the case at bar, however, we find nothing to show any
overreaching or advantage taken of appellee in the execu-
tion of the contract. It is clear to us from the proofs that
she understood that it deprived her of everything belong-
ing to her husband at his death, for she then offered to
her husband's sons and heirs every particle of property she
had received of him, as well as small articles of household
goods which had been bought for the house while they were
married, and in so doing she showed a much more com-
mendable and worthy spirit than did the heirs, who were
anxious and willing and did take from her the uttermost
penny she had received through her husband, save a few
pounds of coal and some vegetables in the cellar.
We are of opinion that the widow was not entitled to the
award under this contract and that in allowing it the court
154 Appellate Courts of Illixois.
Vol. 3:^]. Town of Sheldon v. Burry.
erred, and for that error the judgment is reversed and cause
remanded.
Appellee has filed an amended abstract, and asks that the
cost be taxed against appellant. This motion will be dis-
missed. We think there was no very urgent necessity for
the amended abstract.
Heveraed and remanded.
Town of Sheldon
V.
w 164 George Burry and William Burky.
76 640]
Attorney and Client — Fees — Recovery of Evidence — Deposition —
Instructions,
1. Objections to the introduction of certain evidence in a given Ciise can
not be primarily made herein.
2. An objection to a deposition wliich could be removed or obviated by
a new examination or a re-ezamination of the deponent, can not be con-
sidered after the case is called for trial.
3. In an action broujrht by attorneys to recover from a municipality for
fees earned and disbursements made in certain suitf>, this court declines, in
view of the evidence* to interfere with the verdict for the plaintiffs.
[Opinion filed May 21, 1891.]
In error to the Circuit Court of Iroquois County; the lion*
Alfekd Sample, Judge, presiding.
Messrs. Kay, Euaks & Kay, for plaintiff in erron
Messrs. Harris & Hooper, for defendants in error.*
Upton, J. This suit was in assumpsit. The declaration
contained the common 'counts only, with affidavit of merits,
to which the general issue was interposed, with affidavit of
meritorious defense.
The suit was instituted to recover from plaintiff in error
attorneys' fees and claimed disbursements in the defense and
Second District — December Term, 1890. 155
Town of Sheldon v. Burry.
prosecution of certain suits brought in the United States
Circuit Court for the Northern District of Illinois by the
holders of certain bonds issued by the plaintilBP in error in
aid of the construction of the Chicago, Danville & Vincennes
liailroad, originally amounting in the aggregate to $25,000,
and for professional services claimed to have been rendered
bv defendants in error in draftina: various and several bills
in equity to restrain the collection of said bonds in the
Federal and State Courts in the States of Maine, New York
and Illinois. Defendants in error also claimed fees and
compensation for obtaining, as claimed, a compromise and
settlement of about $4:0,000 of such bonded indebtedness of
plaintilf in error for the amount of $2,545.34, or about ten
per cent of the face or par value thereof.
The amended and original bills of particulars filed by
defendants in error claimed as due from plain tifif in erior
$7,610.45, over and above discounts or set-oflPs thereto.
The claimed services extended over a period of three
years and eight months, and the moneys claimed to have been
disbursed by defendants in error was $110.45. Upon this
claimed account defendants in error had received to apply
thereon the sura of $1,500 at the commencement of this
suit In the Circuit Court a trial was had with a jury, and
a verdict found for defendants in error for $4,000, upon which,
after overruling a motion for a new trial, judgment was
rendered in the trial court, to which plaintiff in error
excepted; to reverse which judgment this writ of error was
sued out.
It appears from the evidence in this record that defend-
ants in error were at first employed by plaintiff in error in
the litigation referred to under a special contract as to fees
and compensation in the trial of one suit only, the trial of
which, being thereafter abandoned and an entirely different
method of procedure in regard to that litigation being
adopted by plaintiff in error, the defendants in error were
employed on a general retainer, as they contend, to protect
the interests of plaintiff in error in whatever litigation might
arise in an attempt by the holders of the said bonds to
156 Appellate Courts op Illinois.
Vol. 39.] Town of Sheldon v. Barry.
enforce collection thereof, and that the first retainer under
such stipulated compensation for service in that regard was
abandoned by the act and direction of plaintiff in error.
Defendants ijn error contended that no specific compensation
was ever agreed upon, or sought to be agreed upon, by either
party to this litigation, as to the amount of compensation
defendants in error should receive for the services rendered
or to be rendered in that behalf, and hence they are entitled
to receive what the same were reasonably worth.
In this contention the jury found for the defendants in
error, and after careful examination and study of this record,
we are unable to say that the jury wei*e not fully warranted
in so finding. This was entirely a question of fact for the
jury, and unless some error in the rulings of the trial courts
prejudicial to the plaintiffs in error intervened to produce
the result, we can not interfere.
Objection is made by plaintiff in error to the action of the
trial court in the overruling of certain objections made to
certain questions and tlie answers thereto contained in the
depositions of William Burry, Thomas S. McClelland, W. S.
Ewing, J. S. Cooper, H. S. Munroe and Thomas Bates, attor-
neys. The objection to the deposition of William Burry now
made is, in substance, that he was allowed to state the whole
history of the litigation from the time the defendants in error
became connected therewith until its close.
There does not appear to have been any such objection
made to this evidence in the trial court by plaintiffs in error.
It is too late to raise it here for the first time; besides, we
perceive no valid objection to Burry stating all the facts and
circumstances under which the claimed service was rendered
and the nature, amount and value thereof. The objection to
the other depositions above named now interposed is, that
the evidence of tliese attorneys therein contained as to the
value of defendants in error's services, in fact covered the
period of time when the fees and compensation of defend-
ants in error were fixed by special agreement and did not call
for the usual and customary fees for such services.
The objection we can not regard as well taken, for several
Second District — December Term, 1890. 157
Town oF Sheldon v. Burry.
reasons; in the first place the jury have virtually found that
no special agreement existed; that the one Urst made, for the
reasons before stated, was abrogated and abandoned, and the
evidence establishes that fact beyond question, as we think.
Secondly, there was no objection specifically upon the ground
first above mentioned taken in the trial court, nor motion
made to suppress the deposition or any part thereof before
the trial. If such objection had been taken in the proper way
and in apt time, the claimed defects might have been obviated,
if in fact any such defects there were. It can not be made
liere for the first time and rendered availing; There was no
objection made to this testimony at the time it was taken and
no cross-examination of either witnesses upon that subject
shown by the record before us, and in regard to the value of
the services rendered which are sought to be established by
the evidence contained in the depositions complained of, we
think the objections are not well taken in fact, and that the
questions and answers are not in point of fact objectionable,
as claimed by plaintiff in error.
The rule is well established that an objection to a deposi-
tion which could be removed or obviated by a new examination
or a re-examination of the deponent can not be ccmsidered
after the case is called for trial. Kassing v. Mortimer, SO
111. 602; Wilson S. M. Co. v. Lewis, 10 111. App. 191.
The issue being the reasonable value of defendants in
error's service to plaintiff in error, rendered the questions
and answers complained of in the depositions not objection-
able, and the Circuit Court rightfully so held, as we think.
We think the second, third, sixth, eighth and ninth instruc-
tions asked and given to the jury were proper and substan-
tially covered the case as established by the evidence. We
also think that the refused instructions and those modified
were properly so refused and modified and there is no error
in the ruling of the Circuit Court in the admission or rejec-
tion of evidence on the trial, apparent to us by the record,
and the judgment of the Circuit Court is therefore affirmed^
Judgment affirmed.
158 Appellate Courts of Illinois.
— — "■■■ ■■ .1.1 11 ■,■■■»■■■■■ ■■^■■-1 ■
Vol. :J9.I Russell v. Tliomjis.
Charles Russell
V.
B. F. Thomas.
Practice — Rule 7 of Circuit Court — Service of Stallion — Ttecooery for.
1. In an action broufrht to recover for the service of a stallion, this court
declines, in view of the evidence, to ^ant the motion of plaintiff to strike
from the record defendant's bill of exceptions, the pfronnd thereof bein^
the alleged breach of a rule of the Circuit Court, or to interfere with the
judgment for the plaintiff.
2. In view of rule 7 of the Circuit Court, five days notice having been
given, the only requirement is that the opposite party must have the pro-
po'^ed bill of exceptions, or a copy, four days before presentation; and a
proper construction of the rule does not require the copy or bill of exceptions
to be presented at the suuie time that the notice is given.
[Opinion filed May 21, 1891.]
Appkal from the Circuit Court of Iroquois County; the
Hon. Alfred Sample, Judge, presiding.
Messrs. Uasris & Hooper, for appellant.
Mr. C. W. Raymond, for appellee.
Lacey, J. The appellee moved the court to strike the
appellant's bill of exceptions from the record, and this motion
was reserved by us to the hearing.
The grounds of the motion are as follows : 1. The rules of
the Circuit Court were violated by appellant in that ho failed
to give appellee or his counsel five days notice of the time and
place of the presentation of the bill of exceptions to the
judge. 2. That the same bill of exceptions presented to
appellee's counsel, when, or the next day after the notice, was
not the same as was afterward signed by the judge, hence
the failure to comply with the rule.
Rule 7 of the court is as follows, as far as applies to the
matter in hand, viz.: ^^ In case the court shall extend the time
Skcond District — December Teem, 1890. 169
Russell V. Tboinos.
for preparing and presenting for signature a bill of exceptions
to a day in vacation, on or before which a bill of exceptions
may be presented for the signature of the judge, it shall lie
the duty of the party preparing such bill of exceptions to give
the opposite party five days notice of the time and place of
presenting such bill of exceptions, and he shall, at tlie tinic, leave
\vith the opposite party a copy of the proposed bill of excep-
tions, or shall, allow the opposite party to take the original
draft of such bill and retain the same for four days for exam-
ination, and no bill of exceptions shall be signed in vacation
without satisfactory proof of such service of notice and
copy," etc.
We think the objections taken are not sustainable. The
five days notice was given, and as we interpret the rule, the
only requirement is that the opposite party must have the
proposed bill of exceptions, or a copy, four days before presenta-
tion; and a proper construction of the rule does not require the
copy or bill of exceptions to be presented at the same time
tliat the notice is given. The bill of exceptions, as proposed,
was delivered to appellee's counsel the next day after the
notice and in time to fill the four days requirement. It is
claimed that the exact bill of exceptions as presented was not
the same as was finally signed by the judge. It is not pointed
out wherein it differs, except that the one signed was the
reporter's notes of tlie evidence and was longer than the one
first presented. This may be, and it may have contained much
that was immaterial, as most reporters' notes do. But we see
nothing in the facts that would deprive the bill of exceptions
first presented from being considered, as the rule states, the
" proposed bill." A proposed bill was presented and we see
no reason to doubt that it was in good faith, although it may
not have been an exact copy of the one finally signed. The
motion is overrnied.
Opinion on the Meritn of the Case.
This was a claim sued on before a justice and afterward
appealed to the Circuit Court, by appellee to recover for the
service of his gray stallion to appellant's marc in the spring
160 Appellate Courts of Illinois.
Vol. 39.] Russell v. Thomas.
of 1888, as claimed, for $15. The verdict resulted in favoi
of appellee for the amount and judgment was rendered ir
the Circuit Court therefor. There seems to have been on
the trial in the court below but one point of dispute, i. ^.,
whether the appellee agreed to allow the appellant, in case tlio
mare became with foal and it died, to breed the mare back
free of charge. The appellee based his claims on thegroupds
that the mare was bred to the horse without auy special con-
tract as to the price and the terms, and tliat the terms were
$15 to insure a foal; that the mare became with foal from the
service of the horse and that he had a right to recover.
Appellant claimed a special contract that the service was to be
$15 to insure his mare with foal, and in case the colt should
die he had the privilege of again breeding his mare. So it
will be seen that there was no dispute except as to the rebreed-
ing in case the colt should not live. The appellant insists that
the colt died, which appears to be undisputed from the evi-
dence, and he also insists that the appellee sold his gray horse
and therefore he could not breed again, and tlierefore is
released from payment. We are inclined to think that the
appellee's right to recover is made out at ]east p?*iin<i facie j
when he has shown that the mare was with foal, which he did,
and if the appellant was entitled to recoup the value of the
reservice he must show a failure to comply with such require-
ments on the ] art of appellee. There is no evidence that the
reservice was to be a warranty. It was simply a privilege or
an option appellant had and he might exercise it or not as he
chose. If he never exercised his privilege or asked to have
it granted to liim he could not insist on any rebatement of
appellee's charge. We find no evidence in the record that the
appellee, even if such a condition is made out by the evidence,
was ever put in default by appellant.
In the first place there is no evidence in the record to thow
when the horse was sold, except that he was sold some time
before July or August, 1S89. Appellant testifies that he was
at the sale, but he does not state when tlie sale took place.
Thomas says he asked appellant in August, 1889, why he didn't
bring his mare back, and appellant replied " the mare had a
Second District — ^December Term, 1890. 161
- — - -^ -
Russell V. Thomas,
liard time and he did not want to breed lier," and he had bred
all of his mares, and "jon (appellee) have sold the horse."
Appellant himself testifies, "at the time we had the talk in
July he offered me the black horse (that is to Jet him breed
to him). I knew the gray horse was gone and we had bred
all onr mares. I never told him I would not breed at the
proper time, if he had the horse." This is substantially all
the evidence and the question of breeding back. Tlie appel-
lant failed to show to the jury that he had not bred his mares
before the horse was sold, or that he wanted to or would have
bred the mare to the gray horse even if appellee had not sold
him. He made no tender of her prior to the time he had
bred his mare to another horse. If he had done so how could
he know that appellee could not have complied with this
supposed condition, even if he had parted with the horse?
There was no evidence that appellee was ever put in default
even on tlie supposed condition. So we think the verdict was
right without reference to the instructions.
The appellant complains of the fifth instruction in that the
court told the jury that '' the defendant was bound to pay
for the service of plaintiff's horse according to the terms on
which said horse was at the time stood." This as given, was
correct, as there was no disagreement as to the usual terms
and what appellant insisted the contract was, except as to
the privilege of rebreeding the mare. The court might have
submitted the hypotheses of the appellant's supposed recoup-
ment. But as there was no evidence on which to base it, it
was not necessary. Besides, if the appellant had desired such
questions submitted he should have presented a properly
drawn instrument on the point. What has been said disposes
of all objections as to the admissibility of evidence and other
like objections. The judgment is affirmed.
Judgment aj/irnied.
ToL. XXXTX 11
r-
162 Appellate Courts of Illinois.
Vol. 39.] The People v. Davis.
The People, ex rel.,
V.
Ira W. Davis et al.
Highways — Refusal of Commissioners to Act upon Petition — Mandamus
— Evide n ce — Pra ctice,
1. Hif^hway coramissionen may properly refuse to entertain a petition
duly filed touching the location of a road, the real object thereof bein^
to locate a disputed boundary line between land owners.
2. A. mandamus will not be awarded unless the petition therefor shows
a clear rl^ht to have that done which is the ba.<:is of the requf^st.
3. Replying to an answer operates to waive the right to claim that the
matters therein contained are immaterial; to raise that point, a plaintiff
should stand by his demurrer thereto, and not take issue.
[Opinion filed May 21, 1891.]
In kkror to the Circuit Court of Warren County; the
Hon. John J. Glenn, Judge, presiding.
Messrs. Geikr & Stewart and C. A. MoLoughlin, for
plaintiffs in error.
Messrs. Kirkpatrick & Alexander, for defendants in
error.
O. B. Smith, P. J. This was a petition for a peremptory
writ of mandamus to compel defendants in error, who were
highway commissioners, to receive and act upon a certain
petition asking them to lay out a road on what was called in
the petition "the Gordon line."
The commissioners refused to act upon the petition.
The cause was heard by the court below, and upon the
hearing the writ was refused. The relators bring the record
here on writ of error. The petition alleged that in 1859 a
certain road was surveyed across the township by one Gordon,
the county surveyor, and that it was afterward laid out and
opened across the township, with the exception of one-half
Second District — December Term, 1890. 163
The People v. Davis.
mile, at the west end, and that it was laid out on this line
surveyed by Gordon, except as to the half mile, and that as
to that half mile it was found that a Mr. Wood, who owned
the land, had, at the time of this survey, a fence inclosing in
his field this half mile of the road, and that he obtained leave
of the commissioners to make a jog in the road four rods to
the northward and thence west along his fence to the west
side of the townsiiip until such time as he, Wood, could
move his fence, and allow the road to pass on straight to the
west line of the towaship on the'' Gordon line." The peti-
tion then alleges that Wood never moved his fence nor
straightened the road, but that it has run in the same place
since 1859, with the jog of four rods to the north, up to
this time. The pretended purpose of this petition was to
straighten the road and run it through to the west line of the
township upon the "Gordon" line as called for in the
petition.
We are satisfied from a careful examination of this record
that the defendants were justified in refusing to entertain this
petition.
It is apparent from the evidence that what is called the
" Gordon line" is a disputed line, and that the rea.1 purpose of
these petitioners is to get the highway commissioners to
engage in a lawsuit and settle the location of disputed
boundary lines between land owners, under the guise and pre-
tense of locating a road.
These commissioners insist that the road is already on the
** Gordon line," and that it was an open, palpable fact known
to them, and that the road had been there and traveled by
the public, and so known to everybody in the township, for
thirty years, and they insist that it was not their duty to
entertain a petition to locate a public highway on the
** Gordon line " when they all knew, as a matter of fact, that
the road was already on the " Gordon line."
Had the petition presented anythingfor them to determine
which was 'not self-evident to them, and where they conld
see that the real purpose was to locate a road, then it would
have been their duty to have received and acted upon the
39 104
141t 632
164 Appellate Courts op Illinois.
Vol. 39. J Aultman & Co. v. Silvis.
petition. But whatever view we might entertain as to the
duty of the commissioners when this was first presented we
are now satisfied from the evidence heard before the Circuit
Court that they were justified in not acting on the petition-
It is uncertain where this " Gordon line " is, and we are now
of opinion that the commissioners have such actual and per-
sonal knowledge of the place where Gordon ran his line, and
that the road was there on the line, that they were justified
in refusing to entertain the petition.
The plaintiffs in error, by replying to the answer, have
waived the right to now claim that the matters there alleged
were immaterial. To have presented that point they should
have stood by the demurrer, instead of taking issue. The
evidence also satisfies us that the real purpose of this petition
was to locate a disputed boundary line between land owners.
Where commissioners are satisfied that that is the real
object of the petition we think they are justified in refusing
to entertain it. Unless the duty is clear the court will not
award a mandamus to compel it. The petition must show a
clear right to have the thing done they ask, and, failing in
that, they must fail. We think they have not brought them-
selves within that rule in this case, and the judgment will be
affirmed. Judgment affirmed.
C. Aultman & Co.
V.
Thomas S. Silvis, Sherifp.
Chattel Morfgnges-^Chap. 96^ Starr tt C. Ill, Stats,, Act of 1877, See>
4t page 179 — Replevin,
1. A mortgagor has a right to secure a debt not maturing in two years
with a chattel mortgage for the full period of two years.
2. A creditor and mortgagee may declare his whole debt due, in
advance of the time named in the note, in case of the seizure of the mort-
gaged goods by another, or in case of danger of losing his security, the
mortgage containing a provision to that end.
Second District — December Term, 1890. 165
Aultman & Co. v. Silvis.
[Opinion filed May 21, 1891.]
Appeal from the Circuit Court of Eock Island County;
the Hon. Aethue A. Smith, Judge, presiding.
Messrs. William Jackson and E.'E. Parmenteb, f or appel-
lant.
To understand the chattel mortgage act correctly its pur-
pose must bo considered. No legislation is necessary to
make a chattel mortgaaje valid between the parties. Neither
the common law nor the statute forbids or prevents parties
mortgaging their property when it is not done fraudulently.
The right to dispose of property by mortgage, pledge or
other lawful means is but the exercise of that right of
dominion and ownership that the citizen has over that which
he possesses.
. At common law a mortgage of personal property might be
verbal, no writing being required. Jones on Chattel Mort-
gages, page 2, Sec. 2.
At common law a pledge or mortgage of personal property
was not valid as to third persons or creditors unless possession
of the property was transferred to the mortgagee or pledgee.
This is a fundamental rule of the law that needs no argument-
To avoid this legal requirement, and to enable the debtor to
enjoy the use of his property while it may be mortgaged, the
chattel mortgage act was passed.
" The most common object of such a mortgage is to enable
the mortgagor to give security on the goods, and yet for the
time being to retain the custody and use of them. '' Jones on
Mortgages, Sec. 236.
"Registration dispenses with delivery and possession."
Sec 236.
A chattel mortgage not recorded or acknowledged is bind-
ing between parties. Gregg v. Sanford, 24 111. 17; Forest
V. Tinkham, 29 111. 141; McDowell v. Stewart, 83 111. 538.
To understand the meaning of the chattel mortgage act,
under which appellee claims the mortgage in controversy is
void, we refer to the act respecting chattel mortgages (Rev.
Laws 1845, Chap. 20) which preceded it. It provides :
166 Appellate Courts of Illinois.
Vol. 39.J Aultman & Co. v. Silvis.
"Any mortgage of personal property so certified shall be
admitted to record by the recorder of the county in which
the mortgagor shall reside, at the time when the same is
made, acknowledged and recorded, and shall thereupon, if
honafde^ be good and valid from the time it is so recorded
for a space of time not exceeding two years, notwithstanding
the property mortgaged or conveyed by deed of trust may
be left in possession of the niortgagor." Reed v. Eamcs, 19
111. 594; Cass v. Perkins, 23 111. 326.
Under the act of 1845 the mortgagor could hold possession
of the mortgaged property for two years, yet not for that
time if the debt matured before. But in Reed v. Eames the
court says: "Had the mortgage in this case provided that
the possession of the chattels should remain wMth the mort-
gagor two years and not become absolute on default, there
would be no doubt or difficulty in the case; but it pro-
vides the contrary — that it shall be absolute on maturity of
the note and default made."
Under the act of 1845 this question was presented in the
case of Cook v. Thayer, 11 111. 617.
A mortgage was executed to secure a note payable in three
years. The mortgage authorized the mortgagor to retain
possession of the mortgaged property until default be made.
It was claimed that this provision made the mortgage void;
that the law only allowed the mortgage to run two years.
But in this case it appears that the mortgagee took j^ossession
of the mortgaged property within two years. The court
held the mortgage to be valid. In this case (Cook v. Thayer)
the court says :
*' The true meaning of the statute is, that a mortgage on
personal property, duly acknowledged and recorded, and
containing a provision that the property may continue in the
possession of the mortgagor, shall, if made in good faith and
to secure an honest debt, be good and valid against creditors
and purchasers, for the space of two years after the same is
recorded, and not that a mortgage which has a longer period
to run is without the protection of the statute altogether.
It continues valid and operative for two years, whether the
Second District — December Term, 1890. 167
Aultnifin & Co. v, Silvia.
debt which it is designed to secnro then becomes due or
not. At the expiration of two years it ceases to be valid
as against creditors and purchasers iinlees the possession of
tbe property is transferred to the mortgagee."
This case has never been overruled so far as we know. It
is not against the policy of the law, nor does it violate any
legal principle, that a debtor should have the benefit of the
two years' provision in a case where his debt runs longer than
that period.
The law of 1845, as shown by the cases referred to, was
applied as follows :
First A mortgage of personal property was good for two
years from the recording of the mortgage.
Second. Where the mortgage did not provide for the lien
to continue for two years, the lien did not extend beyond the
maturity of the debt
Third. Where the mortgage was given to secure a debt
that had a longer period to run than two years, the mortgage
provision allowing the property to remain in the mortgagor's
possession was good for two years; then it ceased to be a valid
lien as against third persons, unless the mortgagee took posses-
sion of the property.
If the case now before your honors had to be decided
under the law of 1845 there could be no controversy. We
insist that, under the act of 1874, amended in 1887, there can
be no contention when the law is correctly interpreted.
Statutes must be interpreted according to the intent and
meaning, and not always according to the letter. When it
becomes necessary to reject one or two words in a statute and
to substitute anothej*, to give force to the meaning of the law,
it should be that which best effectuates the legislative inten-
tion; its words may be enlarged or restricted according to its
true intent. Reinecke v. People, 15 111. App. 245, and cases
there cited.
" It is one of the canons of construction, that the real inten-
tion of the Legislature, when actually ascertained, will prevail,
and that for the purpose of such ascertainment the whole of
the statute, the law existing prior to its passage, and the
mischief to be remedied will be considered.
168 Appellate Courts of Illinois.
Vol. 39.J Aultman & Co. v. Silvis.
"It is also a rule that such construction will be avoided as
"vrould lead to palpable injustice and absurdity. '' County of
Clark V. Bollmau, 15 111. App. 281.
The interpretation contended for by counsel for appellee is
narrow, partial and unfair.
A person who owes a debt that matures within two years
can use his personal property in his business for the purpose
of security. He can have the use of the property- during the
existence of the debt and enjoy all the benefits intended to bo
enjoyed by debtors under the chattel mortgage law. Whereas
another debtor, equally meritorious and needy, whose debt
does not mature within two years, under the construction con-
tended for by appellee, can not use his personal property for
security, and thus creditors and debtors of this c'ass are alike
excluded from the privileges of the law — a privilege as valu-
able to them as those of the first class. Pro])erty is valuable
to the citizen in proportion as he can use it for the purpose of
liis business. The use of property for thepurj^ose of security
is a valuable privilege, which the citizen would not be denied
except in cases where the public good or public policy would
be promoted.
Messrs. Sweeney & Walker, for appellee.
Statutes relating to chattel mortgages, where the property
is allowed to remain in the possession of the mortgagor, are
in derogation of the common law, and hence are always
strictly construed; and unless the mortgage is executed in
every part, strictly in conformity with the statute, it is uni-
versally held to be void as against creditors. In other words,
while such mortgages are allowed and .permitted, they are
not regarded with favor by the courts, and for the very good
reason \h?ii pei^soiial property — the easiest to be reached by a
creditor, and all that can be reached for small claims — is thus
put beyond the reach of the general creditors; and also for
the reason that this class of property is usually selected by
the debtor to carry out a fraudulent purpose, and to hinder
and delay his creditors. So well is this understood that in
some States, such as Nevada and Washington, an affidavit is
Second District — December TepwM, 1890. 169
Aultman & Co. v. Silvis.
required to be filed with the mortgage in the first instance,
stating that ** it is made in good faith^ for an actual debt, and
was not made to hinder, delay or defraud any creditor of tlio
mortgagor;" and we think, without exception, such an affi-
davit must always be filed in case of an extension. When a
mortgagee ,/'«27^ or neglects to see that every step required
by the statute is complied with, his mortgage is void ah
initio^ and creditors may take the property to satisfy their
debts, and are never chargeable with bad faith for so doing.
The courts universally approve of such taking, and furnish
the mortgagee no redress. Porter v. Dement, 35 III. 478-80;
McDowell v. Stewart, 83 III 538-40; Frank v. Miner, 50 111.
444-8; Sage v. Browning, 51 111. 217-9; Blatchford v. Boyden,
122 III. (357; Long v. Cockern, 128 111. 29; Jenney v. Jack-
son, 6 111. App. 32-6.
A simple reading of the statute shows that only a mort
gage to secure a debt until viatiirity w^as in the mind of the
Legislature. No other is referred to. Hence, at best, appel-
lant's mortgage could only be hold valid as a security for the
payment of the first two notes, the last of which became due
December 1, 1888, both of which had been paid long before
the levy. Appellee levied his execution and took the prop-
erty August 1, 1889, by virtue of the execution issued on
that day.
Upon the maturity of these notes the mortgage, if valid in
the first instance, thereni)on ceased and expired as a secumty.
There was no other note maturing within the two years, nor
for the two months thereafter ; hence it was impossible to
have the mortgage extended under the amendment of 1887
(which we shall more fully discuss hereafter) by filing^ an affi-
davit. It would be impossible to file an affidavit within the
two years from filing for record, and within thirty days
of the maturity' of any unpaid note. There was no note to
mature within that time. Therefore, as any possible security,
the mortgage lien, if ever existing, had ceased and expired
before the property was taken by appellee.
It cannot be, as counsel urge, that a mortgage can be valid
as against creditors, under the law of 1S74, after the debt
A
170 Appellate CoupwTS of Illinois.
Vol. 39.] Aultman & Co. v. Silvis.
it can legally secure lias been paid, and the mortgagee still
retain possession of the property. Arnold v. Stock, 81 111.
407-10; Blatchford v. Boyden, 122 111. 657; Eagle v. Eohr-
heimer, 21 111. App. 518.
The debt is the principal and the mortgage only the inci-
dent; and upon payment of the debt the mortgage is satisfied
eo insta?iti, and is thereafter void. This has been so often
decided that it is unnecessary to cite authority in its support.
0. B. Smith, P. J. This was an action in replevin, begun
by appellant against appellee, as sheriff of Eock Island County,
to recover the possession of the following personal properly:
A new model separator with the truck stacker and fixtures
and a ten-horse Canton Monitor engine. The plaintiff filed
the usual declaration, and the defendant interposed all the
usual pleas in replevin.
Issues were joined, and a trial before the court without a
jury resulted in a verdict and judgment for appellee. The
plaintiff prosecutes this appeal and alleges that the finding and
judgment of the Circuit Court was erroneous. The case was
tried upon an agreed state of facts, which was as followr,
(except as we have abbreviated it by leaving out unimportiint
matters), viz.:
The following are the agreed facts :
"First. That the property replevied was on the first day
of August, A. D. 1887, the property of said James M. Davis,
and he remained in possession thereof until the same was
levied on and taken from him by virtue of the execution here-
inafter named on August 1, 1889.
" Second. That on the first day of August, 1887, said
James M. Davis was indebted to said 0. Aultman & Co. (an
incorporated company under the general laws of the State of
Ohio), of Canton, Stark County, Ohio, in the sum of $1,941.25;
to secure the payment of said sum of money, said James M.
Davis made and executed five promissory notes payable to the
order of said C. Aultman & Co., dated August 1, 1887, and
described as follows, to wit: One for $250, payable December
1, 1887; one for $425, payable December 1, 1888; one for
$425, payable December 1, 1889; one for $425, payable Decern-
Second District — December Term, 1890. 171
Aultman & Co. v. Silvia.
bcr 1, 1890; one for$416.25, payable December 1, 1891; which
notes drew interest at the rate of eight per cent per annum
from date until maturity, and eight per cent per annum from
maturity until paid; that the first two notes above mentioned
liave been fully paid; that the remaining three notes, together
with the interest, at the time of the commencement of this
suit were owned by the said C. Aultman & Co. and unpaid;
that on the fii*st day of August, 1887, the said James M. Davis
made and executed a certain instrument marked 'Chattel
mortgage' on the property in controversy; that the following
is a correct copy of said three unpaid notes and said instru-
ment, and the certificate of acknowledging and recording
thereon."
Here follows copies of the three iiotes above referred to.
for the amounts and due as above stated, each signed by J. M.
Diivis and W. H. Davis.
Then follows in the stipulation of the copy of tlie chattel
mortgage upon the same property above described in the usual
form and bearing the same date with notes.
The following is one of the clauses in the chattel mortgage
included in the stipulation :
'' Provided, nevertheless, that if the said party of the first
]iart, his heirs, executors, administrators and assigns, shall well
and truly pay or caused to be paid unto the said party of the
second part or their successors and assigns the sum of nine-
teen hundred and forty-one and 25-lOOths dollars with inter-
est, according to the conditions of five certain promissory
notes, signed by the said party of the first part, and payable to
the order of C. Aultman & Co., dated August 1, 1887, and
described as follows, to wit: One for two hundred and fifty
dollars, payable December 1, 1887; one for four hundred
and twenty-five dollars, payable December 1, 1888; one for
four hundred and twenty-five dollars, payable December 1,
1889; one for four hundred and twenty-five dollar^, payable
December 1, 1890; one for four hundred and sixteen
25-lOOtliB dollars, payable December 1, 1891; with interest at
the rate of 8 per cent per annum from date until maturit}^
and 8 per cent per annum from maturity until paid; then
172 Appellate Courts of Illinois.
Vol. 89 ] Aultman & Co. v. Silvis.
and from thenceforth these presents and everything therein
contained shall be void."
And the following is another clause taken from the said
mortgage, viz.: * * * »»or if the same should be seized
upon rnesTie or final process, had against the said party of the
first part, then and in any or either of the aforesaid cases, all
of said notes shall, at the option of the party of the second
part, or their successors and assigns, without notice, become
at once due and payable; and the party of the second part, or
their successoi's and assigns, authorized agent or attorney,
«hall thereupon have tho right to take immediate possession
of said property, wherever it may be found."
We have copied only such parts of the mortgage in ques-
tion as seem necessary to be referred to in the case before us.
«
The mortgage was properly acknowledged and recorded.
The stipulation then continued as follows :
'* Third. Tliat in March, 18S9, said James M. Davis was
indebted to W. W. Elliott and IL B. Carpenter in the sum
of $669.25; that on March 6, 1889, the said Elliott and Car-
penter recovered a judgment in due form and in all respects
valid on said indebtedness against said James M. Davis, in
the County Court of Rock Island, 111., for said sum of
$669.25; that on the first day of August, 1889, an execution
in due form, properly attested, was issued by the clerk of
said court, under the seal of the court, on said judgment; tiiat
said execution was delivered to the defendant, said Thomas
S. Silvis, sheriff of said Rock Island County, and was by him
levied on the said property mentioned in the declaration and
described in said instrument, on the first day of August, 1889.
" Fourth. That after the levy, plaintiff considered itself
insecure and unsafe and feared diminution, removal or waste
of the mortgage property for want of care; that by reason of
said levy, and for the reasons stated above of insecurity
removal or waste, etc., plaintiff at once proceeded to obtain
possession of said property, and did declare the whole amount
of said three notes unpaid, due and payable, principal and
interest, and thereupon, on the 23d day of August, A. D.
1889, while said goods were iu the defendant's possession
Second District — December Term, 1890. 173
Aultman & Co. v. Silvin.
under said levy, plaintiflE made a demand for the possession of
said property from defendant, which defendant refused to
deliver to it, and thereupon this snit in replevin was brought;
that the property in controversy exceeds the value of $1,000,
and at the time of the commencement of this suit said three
notes were wholly unpaid."
It is herein agreed between the plaintiflF and defendant in
til is cause that the only point of contention herein is as
follows :
"PlaintiflE herein claims the risrht to recover from defendant
said mortgaged property so levied on, under and by virtue of
the security of said mortgage conveyance; that less than two
years had elapsed since said chattel mortgage deed was filed
for record before tlie justice and in the ofBce of the county
recorder, and before said demand was made by plaintiff upon
defendant, and the commencement of this suit; and that
plaintiflE did recover possession of the mortgaged property
from defendant by this proceeding within said two years after
such recording."
On the part of the defendant it is contended that the time
between the filing of said instrument for record and the
maturity of the entire debt and obligation mentioned in said
mortgage exceeded the term of two years, contrary to the
statute; and that by reason thereof said mortgage is insufficient
to allow the plaintiflE to recover, and invalid as against said
execution creditors, Elliott and Carpenter.
It is further agreed tliat the court shall decide this case
wholly on the contention of plaintiflE and defendant, whether
said instrument is or is not a valid chattel mortgage or sufifi-
cicnt to allow the plaintiflE to recover herein. If the court
holds that the said instrument is a valid chattel mortgage, or
sufficient to allow the plaintiflE to recover herein, as contended
by the plaintiflE, the finding shall be for the plaintiflE. If the
court holds that the instrument is void as a chattel mortgage
or insufficient to allow the plaintiflE to recover herein, as con-
tended by defendant, the finding shall be for the defendant.
Both parties reserved the right to appeal from the judg-
ment of the court.
174 Appellate Courts of Illinois.
Vol. 39.) Aultman & Go. v. SiJvig.
It will be seen that under the 8ti| u^ation and agreed state
of facts above set out that but a single question is presented for
our determination, viz., whether a chattel mortgage executed
to secure notes not maturing or due within two yeara from
the date of the mortgage, is a valid mortgage under our stat-
ute, foj* the period of two years. Under the agreement here,
five notes were secured by this mortgage, three of them
having more tlian two years to run before maturity after the
date of the notes and the mortgage. The two notes falling
due within two years had been paid and the mortgage no
longer secured them, and could liave no vitality as to them
after they were paid.
The controversy in this case arises under the fourth section
of Chap. 96, on Mortgages, Starr & C. 111. Statutes, which
reads :
** Such mortgage, trust deed or other conveyance of personal
property, acknowledged as provided in this act, shall be
admitted to record by the recorder of the county in which the
mortgagor shall reside at the time when the instrument is
executed and recorded, or in case the mortgagor is not a
resident of this State, then in the county where the property
is situated and kept, and shall thereupon, if bonafide^ be good
and valid from the time it is filed for record until the matu-
rity of the entire debt or obligation, provided such time shall
not exceed two years."
We do not understand appellant to claim that this mortgage
could protect the property or secure the debt as against cred-
itors or purchasers, beytnd the period of two years from its
date, nor do we understand that anv such effect could be
given to it, without it being renewed as now provided by law
under tlie act of 1887. We think a correct construction of
the statute above quoted makes the limitation of two years
apply to the mortgage lien and not to the debt secured by
the mortgage. The subject of the entire section is the
mortgage and not the debt, the thing the Legislature is
providing for, and limiting the security of the mortgage.
It is clear, we think, that the Legislature intended to allow
debtors to use their chattel property for security to any
Second District — December Term, 1 890, 175
Aultman & Co. v. Silvia.
creditor for a limited time only. This was for the purpose
of euabling them to obtain credit, or to secure debts already
incun*ed.
The policy of the law seems to be that debtors shall not be
permitted to incumber their personal property for a greater
length of time than two years, and if the debt secured shall
not mature before that time then the security shall extend for
the full period of two years. But it is contended that because
of this limitation to the mortgage, that it amounts necessarily
or by implication to a like limitation on the debt itself, and
if the debt has more than two years to run, that it is therefore
such a debt as is without the protection of the mortgage, and
that such debt can not be secured by a chattel mortgage, even
for a period of two years.
We do not think such a result follows our construction of
the statute. We think it a matter of no importance how lon^
the debt has to run before maturity, either in whole or in
part, nor how large or small.it may be. It may, notwith-
standing, be secured for the full period of two years, and the
property remain with the mortgagor for that time, provided
it does not fall due before that time; but at the end of two
years, if the debt is not due, or if due and the property not
taken possession of by the mortgagee at the tiiuG it is due,
then as to other creditors and purchasers the security of the
mortgage closes, unless the same be renewed or extended
as provided in Sec. 4, page 179, of the Act of 18S7.
In the case of Cook v. Thayer, 11 111. 617, the Supreme
Court construed the statute of 1845, containing provisions
substantially like our present statute, so far as limiting the
lien of chattel mortgages to two years is concerned. In that
case the note had three years to run. The Supreme Court
say: "The true meaning of the statute is that a mortgage
on personal property duly acknowledged, if made in good
faith, and to secure an honest debt, shall be good and valid
against creditors and purchasers for the space of two yeais
after the same is recorded, and not that a mortgage which
has a longer period to run is without the protection of the
statute altogether. It continues valid and operative for two
176 Appellate Courts of Illinois.
Vol. 39.] Aultman & Co. v. Silvis.
years, whether the debt which it is designed to secure then
becomes due or not; at the end of two years it ceases to be
valid as ao^ainst creditors and purchasers, unless the pos-
session of the property is transferred to the mortgagee."
And it would seem from the language of the Supremo
Court in Cook v. Thayer, supra^ that when a mortgage
secured a debt which did not mature in two years, that for the
purpose of making the security available, the mortgagee
might take possession of the property at the end of two
years, although the debt is not in fact duo; but whether that
right here existed we do not decide, but, however that may
be, it is clear that the mortgagor has a right to secure a
debt not maturing in two years with a chattel mortgage for
the full period of two years. We find none of tlie cases
cited by appellee in any wise inconsistent with this view,
nor inconsistent with the rule announced in Cook v. Thayer.
We think this case clearly controls the one at bar. While
the phraseology of the two statutes is not exactly alike,
still we think there is no substantial diiference so far as thcv
both relate to the two years' limit of the mortgage. We
think, though, that tiie statute now in force made this mort-
gage a good and valid lien for the notes not then due, and
which would not be due on their face within the two years
from the date and recording of the mortgage.
We think much confusion and misapprehension of the law
governing the case at bar and similar cases reported results
from a failure to make a distinction between the debt to be
secured and the mortgage given to secure it. The whole pur-
view of the chattel mortgage statute relates to the mortgage
itself, and not to the debt, except to require that the debtshiill
be a real and honest debt. We see no reason in this statute
for concluding that the Legislature intended to make any
distinction between large or small creditors, or between those
whose debts would mature within or after the expiration of
two years, or that it was the intention to allow debtors to
secure only debts which should mature within two years-,
and deny them the right to secure other debts not maturing
within that time, although the securitj' could not extend to
Srcond District — December Term, 1890. 177
Aultman & Co. v. Sitviy.
the full time of the debt and must stop at the end of two
years. The great purpose and aim of tlie statute was to con-
fer power on debtors to use tlieir personal proj^erty to secure
their honest debts (no matter what kind or when due) for the
limited space of two years. This was supposed to be a valu-
able privilege enforced on both debtor and creditor.
But for reasons of public policy and to prevent needy
debtoi"s and grasping creditors from incumbering perishable
and short-lived property, and to prevent undue favors to par-
ticular creditors to the hindrance and damage of others, the
Legislature deemed it wise to limit the lifetime of that kind
of security under any single mortgage to two years, and to a
less time than that if the debt matured sooner.
But there is another ground upon which the plaintiff's right
to recover seems clear to us. It will be seen by the stipula-
tions above set out that the mortgage provides that in case
the property should be seized on mesne or final process
during the life of the mortgage then the mortgagee might
declare the whole debt due and immediately take the property.
This he did, and upon doing so his right to immediate
possession of the property became absolute.
By the right to declare the whole debt due reserved in the
mortgage upon the happening of the event named, and by
exercising that right and so declaring the debt due, the
mortgagee thereupon removed out of .the case. The whole
ground or pretended right of appellee to hold the pro])erty
under his execution, became thereupon ipsoj^acto,' the whole
debt became due within two years, and there could no longer
be any question about the mortgage covering and protecting
the property.
This right of a creditor and mortgagee to declare his'
whole debt due in advance of the time named in the note in
case of seizure of the goods by another, or in case of danger
of losing his securit}^ and to thereupon take tlie goods under-
his mortgage, has been repeatedly held by the Supreme
Court to be the law and the right of the mortgagee. Bailey
V. Godfrey et al., 64 111. 607; Lewis v. D'Arcy, 71 Ilh():i8;
Roy V. Goings, 96 111. 361.
Yok XXXIX 12
178 Appellate' Courts of Illinois.
VoT,. 39.] Van Nostrnnd v. Meuland.
Under eitlicr view of the case we have discussed we think
it clear that appellant was entitled to the possession of the
goods described in th^ mortgage, and that the court erred in
its finding and judgment to the contrary.
For that error judgment is reversed and remanded.
Reversed and remanded.
4
1
Laget, J. I regard the mortgage as valid under the statute.
Olive R. Van Nostra nd
V.
Charles B. Mealand, Assignee, etc.
Insolvency — Claim of Wife of One Member of Fittn — Loan,
Thin court holds as erroneous an order disallowing the claim of a married
woman agfainst an insolvent firm of which her husband was a member.
[Opinion filed May 21, 1891.]
Appeal from the County Oonrt of Kane County; the Hon.
Edward C. Lovell, Judge, presiding.
Messrs, Sherwood & Jones, for appellant.
Messrs. Clifford & Smith, Botsford ^ Wayne and John
A. Russell, for appellee.
C. B. Smith, P. J. On and prior to September 4, 1884,
Edwin E. Balch and George Colie were doing business in
Elgin under the firm name of Balch & Colie.
About the 5th .of September Balch sold his interest in the
business to George T. Van Nostrand for $1,000, and he assumed
the debts of the firm. Balch supposed at the time that Van
Nostrand was buying the entire business and that Colie was
also selling liis interest, but this was a private understanding
between Van Nostrand and Colie, that Colie was to remain in
Second District — Decembem Term, 1890. 179
Viin Nostrand v. Mealand.
the business after they had gotten rid of Balch and that the
new firm sliould be Van Nostrand & Colic.
Immediately after this arranojement was completed Van
Nostrand took possession with'Colie and at once went to his
wife, the plaintiff in this case, and informed her that he wanted
to borrow from her $1,^00 for himself and five hundred for
the new firm of Van Nostrand & Colie. Mrs. Van Nostrand
did not have the money, but in order to accommodate her
liusband and his new partner she sold a mortgage for $1,000
and gave her husband tlie proceeds of it. He immediately
paid Balch $500 out of this loan and took the other five
hundred and placed it to the credit of the new firm of Van
Nostrand &; Colic. This money was used by Van Nostrand
& Colie in paying the debts of tlie firm. Again on the 25th
of September George G. Van Nostrand borrowed from his
wife $200 for the use of the firm, and again on the 5th of Octo-
ber he borrowed from her $50 for the firm.
All tliese sums of money were placed to the credit of the
firm of Van Nostrand & Colie and were used by tliem in buy-
ing goods and paying bills.
The December following the firm of Van Nostrand & Colie
failed and made an assignment to Charles B. Mealand for the
benefit of their creditors.
Appellant, Mrs. Van Nostrand, filed and proved her claim
against the firm for $760, the amount loaned them, through
hor husband, but her claim was not allowed. From this
order Mrs. Van Nostrand appeals to this court. Wetliinkthe
County Court erred in disallowing this claim. There is no
proof in the record to show that Mrs. Van Nostrand iiad any
knowledge of the agreement of Iser husband with Balch to
pay all tlie debts of the firm when he bought into it. She
was an entire stranger to that transaction and was not bound
by it and it was not admissible in evidence against her. The
money was loaned by her to the firm and used on the joint
account of the firm in buying goods and paying debts with the
knowledge and assent of both its members. Appellant was
not bound to see what use the firm made of the loan. Even
f she liad known that her husband had agreed to pay the old
180 Appellate Courts of Illinois.
Vol. 39.] Johnson v. Stinger.
debts of the firm she might still loan the new firm money to
be used by them as they saw fit
But the evidence shows that as between George Yan Nos-
trand and Coh'e the agreement on the part of Yan Nostrand
to pay all the debts of the firm was a mere rnse to get rid of
Balch, and that it was then underetood that Co lie shonld
remain in the firm as a silent partner, but in fact without any
change as to his rights and liabilities in the firm. So that
as between the members of the new firm Cqlie was not
released from the debts of the old firm nor his relation to the
assets or its debts at all changed.
Appellant loaned her money to the new firm in good faith
and the firm used it to pay debts, for which they were botli
liable, and to buy goods, and we fail to see any reason why
appellant shonld not be permitted to prove her claim against
the assignee.
The judgment is reversed and the cause remanded.
Reversed and remanded.
Joseph H. Johnson
V.
39 180
^ ^^ John C. Stinger.
Trespass— Etidenee—Neuf Trial.
1. In the absence of a defense, evidence in a suit of trespass quare
elausumf regit, that the locus in quo has been in' the undisputed possession
of the plaintiff for over fifty years, and that defendant has encroached
thereon by buildinpr afence, doing no other damage, will warrant a recovery
ef at least nominal damages.
2. In the case presented, this court hold that the defendant has failed to
show a good defense, and that the judgment in his favor can not stand.
[Opinion filed May 21, 1891.]
Appeal from the Circnit Court of Marshall County; the
Hon. Laweenob W. James, Judge, presiding.
Second District — December Term, 1890. 181
Johmon v. Stinger.
Messrs. Barnes & Barnes, for appellant.
Messrs. Edwards & Evans, for appellee,
Lacet, J. This was a suit of trespass qiuire clausumf regit
by the appellant against appellee.
The former showed on the trial that the locus in quo had
been in his undisputed possession for over fifty yeara and that
api^ellee had encroached on such possession by putting a fence
on it without authority, though doing no other damage to the
property. This, unless some defense be shown, entitles appel-
lant to recover at least nominal damages, which are alone
claimed.
As we understand it, appellee claims that the declaration
and pleadings narrow the question down to a supposed tres-
pass on lot No. 12, and that he has shown that the trespass
was not committed on lot 12 but on ground just west of it.
We are unable to agree with him in this regard, as the posses-
sion of appellant was in the inclosure claimed by him for fifty
years as being a part of lot 12, and we think under the evi-
dence the loctis in quo must be regarded as a part of lot 12.
But we suppose the main defense is that the appellant can not
maintain this action because he was not at the time of the
building of the fence in the actual possession of the land but
had surrendered it to his tenant, McKeal, to raise a crop of
cora and tomatoes on about eight acres of the lot. We think
McKoal, by the terrts of the leasing, had not the exclusive
possession of the lot, but had only the right to raise the crop
and remove it, without other right, and especially he had no
possession of the place where appellee built the fence com-
plained of.
There appears to have been no defense to this action. It
is insisted, however, that as the damages were only nominal, a
new trial will not be awarded, and the case of Comstock v.
Brossean, 65 III. 39, and other like cases are cited.
That case is entirely different from this. There, only the
mere possession of a person who claimed no interest in the
land was involved, and if even in rightful possession, was a
182 Appellate Courts of Illinois.
Vol. 39] . O'Leary v. Bradford.
trespasser and wrong-doer. Tiiere was no damage to hie per-
sonal property. In this case the appellant was in tlie long
and undisputed possession of the premises, claiming title. If
this judgment is allowed to stand, his claim of possession may
be destroyed and interrupted and his rightful title seriously
embarrassed.
Seeing no defense to the action the judgment of the court
below is reversed and the cause remanded.
m
Reversed and reinanded.
William O'Leary
V.
Stephen Bradford.
Replevin — Goods in Possession of Another under Bill of Sale — Practice
— Insufficient Abstract,
1. A purchaser of personal property, in order to acquire title thereto as
a^fainst creditors and bona fide purchasers of the vendor without notice,
must reduce the property purchased to possession before the rights of siJch
creditors or purchasers attach thereto.
2. In the case presented, this court holds that the jury were justified .in
finding that defendant had actual notice of the rights of plaintiff to the
property in question before the levy was mnde; that notice to the officer
holding the writs was noiice to the attnching creditors, and declines to
interfere with the judgment for the plaintiff.
[Opinion filed May 21, 1891.]
Appeal from the Circuit Court of Marshall County; tlic
Hon. Lawrence W. James, Judge, presiding.
Messrs. H. C. Pettitt and Barnes & Barnes, for appellant.
Messrs. Edwards & Evans, for aj)pellee.
Upton, J. It must be conceded that the abstract filed in
this case is quite deficient, and falls far short of a compliance
with the rules of this court.
It does not appear therefrom what, if any, errors or crosn-
Second District — December Term, 1890. 183
# O'Leary v. Bradrord.
errors have been assigned upon the record for which a
reversal of the judgment of the trial court is here sought.
From the briefs and arguments of counsel we learn that
this was a suit in replevin brought in the Circuit Court of
Marshall County by appellee, to recover from appellant one
stallion, two mules, two hundred bushels of millet seed and
one cider press and fixtures, as the goods and chattels of
appellee, who claims the property by virtue of a bill of sale
to liim given on the 14th of March, 1890, by S. G. Brad-
ford & Bro.. as security and indemnity to him for the
payment of about $3,000 to various creditoi's of the above
named firm, for which said indebtedness he had some time
prior thereto become bound as security. That on the 18th of
March, 1890, Clark & Sons caused an attachment to be issued
in their favor against the goods and chattels of S. 6. Brad-
ford & Bro. for $188.42, which was on the same day placed
in appellant's hands, and by him levied upon the property
in question. On the 20th of March following, Newman &
Ullman sued out an attachment against the same defendants
for 871.10, which was on the day following its issue levied
upon the same property by appellant as such constable and
the property taken into the possession of appellant upon said
attachments. Thereupon this suit was brought, as before
stated, by appellee, and heard in the trial court with a jury.
Upon that hearing appellee testified in substance that he was
seventy-four years old; tliat on the 14th day of March, 1890,
he got the property in question, and a bill of sale thereof w^as
given him therefor; that he did not then remove it as he had
no suitable place to keep it; that tlie consideration for such
bill of sale was $3,000, which he had paid to the creditors of
S. G. Bradford & Bro. a short time prior to the execution of
the bill of sale, upon a part of which indebtedness he was,
prior thereto, surety for said firm; that he obtained the
money to make such payment by a mortgage of his, the
appellee's, farm; that prior to the levy he had advertised the
property in question for sale, and was in person present at
the place where the property was kept, before and at the
time appellant came tbere to make the levy; and before the
184 Appellate Courts of Illinois. ^
Vol. 89.] O'L-ary v. Bnidford,
levy was made, or the property was taken by appellant, appel-
lee notitied appellant that the same was his propert}'; that
appellee claimed it as his own under his bill of sale, and
forbade appellant from taking it, and appellant replied that
lie knew all about his *' bill of sale," that it was not good, made
the levy and took the possession of the property under the levy.
This conversation between appellant and appellee was flatly
denied by the appellant in his testinjony before the trial
court The jury, liowever, chose to credit appellee's testi-
mony upon that contention, and returned their verdict finding
' the right of the property in controversy in ap])ollee, and the
trial court, after overruling a motion for a new trial, gave
judgment thereon, from which this appeal is taken.
No question is made, or error claimed, of the proceedings
in the trial court, in allowing or rejecting evidence, or giving,
refusing or modifying instructions to the jury asked by eitlier
party.
* The only points raised or discussed by appellant's counsel
are, first, whether the appellee's possession of the property
in question, as shown by the evidence, was suflScient to vest
the title thereto in appellee, as against the creditors of S.
Q. Bradford & Bro. and the appellant, as such constable:
second, if it was not, was the evidence suflicient to enable
the constable to justify the taking upon the attachment writs
as an ofKcer de jure ?
In the view we take of the case it will be needful only to
examine the first of these points as stated.
The rule in this State is, that a purchaser of personal prop-
erty in order to acquire title thereto as against creditors and
hona fide purchasers of the vendor, wit/iout notice^ must
reduce the property purchased to possession before the rights
of such creditors or purchasers attach thereto. Huschle v.
Morris, 131 111. 593, and the cases therein cited.
It is clear, we think, that neither the attaching creditors nor
the appellant holding the writs of attachment acquired any
rights in or to the property in question until the actual levy
of the attachment writs, and the jury liave found the fact to
be that appellant had actual notice of the rights of the appellee
Second District — December Term, 1890. 185
Steel V. Stafer.
to the property before the levy was made, and in fact knew that
appellee had the sale bill thereof, and was then in the pos-
session thereof, and notice to the officer holding the writs was
notice to the attaching creditors therein named; and we are
entirely satisfied with that finding, and we tliink it was fully
supported by the evidence.
This view renders it unnecessary so examine the other
point made upon this contention, and the judgment of the
Circuit Court is affirmed.
Judgment affirmed.
Nicholas L. Steel
V.
Clayton E. Shafer.
Trespass viet Armis — Evidence — Instructions.
m
1. An instruction not based upon evidence introduced should be
refused.
2. A party will not be allowed to put in evidence his own statements an
to an affray, or his own statements as to his mental condition at the time
thereof, made at a time subsequent to the occurrence.
8. A general objection to admitting in evidence a reply to an interrog-
atory in a deposition, a portion thereof only being proper evidence, Ciin
not bo considered herein.
[Opinion filed May 21, 1891.] '
Appeal from the Circuit Court of Ogle County; the Hon.
WiL Brown, Judge, presiding.
Messrs. E. F. Dutcheb and O'Brien & O'Brien, for
appellant.
In no view of the case were the statements to Eakle admis-
sible.
Even according to tlie few cases holding that declarations
of a witness out of court may be admitted when offered by
him in corroboration of his testimony under oath on the trial,
18G Appellate Courts of Illinois.
Vor. 39.] Steel v. Shafer.
when it is sought to impeach him by proof of contradictory
statements, the rule was never carried so far as to warrant the
admission of such declarations to corroborate his sworn testi-
mony where tlie adverse party had only sought to prove his
case by introducing evidence of the admissions of the other
party.
When the plaintiff attempts to prove his own case in the
first instance by evidence of the defendant's admissions, there
is no atteni])t at impeachment, and testimony by the defend-
ant in defense showing the transaction in a different light
from that shown by his admissions, does not make the admis-
sions evidence of impeacliment, nor authorize the defendant
to prove his own declarations on other occasions corroborative
of his sworn testimony.-
It was only where a party testified and it was sought to im-
j)each him by proof of contradictory statements made by him
out of court, that he could prove his own statement in corrob-
oration. In this case appellant proved appellee's admissions as
part of his case, and not by way of impeaclmient. It was dis-
cretionary with a. piUee, in defensp, to testify or not.
In the note to 1 Greenl. on Ev., Sec. 229, it is said : " Nor can
an admission be rebutted by evidence of contrary statements;"
citing Hunt v. Roylance, 11 Cush. 117, 59 Amer. Dec. 140,
wliere the question was whether Strobridge was a partner.
Plaintiff proved his admissions that he was, and to rebut it he
was permitted, against objection, to prove tliat on one occasion
he had refused to sign a note, and gave as a reason that ho
was not a partner.
Bigelow, J., says: "He could explain and contradict any
conversation or declaration that had first been proved against
him, but beyond this he could not go. Ilis own admissions,
not offered in evidence against him, had no legal tendency to
control the case proved on the other side.
" To show that a man denied being a member of a copart-
nership to A, to-day, does not prove or tend in any way to
show that he did not admit that he was a member toB, yester-
day. It is simply an admission in his own favor, having no
bearing on the admission proved against him."
Second DrsxjiicT — December Term, 1890. 187
Stpel V. Shafer.
In Jones v. State, 13 Tex. 168, 62 Amer. Dec. 553, the
court sav: **Tlie appellant asked the court to instruct the
jury in eflfect that if a confession of the accused was proved
to liave been made at one time to one witness of the State
and proved to have been denied at another time bj another
witness of the State, one would destroy the other, had both
to be taken together. If this rule should besustained it would
allow the accused to make evidence in his own defense.
'' The whole admission must be proved, both the favorable
and unfavorable parts, but the rule does not extend to mat-
ters distinct from the admissions and contrary statements
made at other tiujcs." 5 Amer. & En^. Ency. of Law, 355.
The rule of exclusions is carried farther in People v. Green,
1 Park. Cr. Rep. 12: "Where a party has called a witness
and proved by him a conversation with the opposite party,
the party whose conversation has been proved can not, on
cross-examination, prove a subsequent conversation between
the party cross-examining and the witness two or three hours
after, though it was upon the same subject as the first and
explanatory of it." .
And this is the decision in Hatch v. Potter et ux., 2 Gilm.
729. See 2 Phil, on Ev., 4th Amer. Ed. 973, 974, and note
to Johnson v. Patterson, 2 Hawks,. 183; 11 Amer. Dec. 757.
The rule in a few of the States admitting such testimony
to rebut impeaching testimony, is against the decided weight
of authority and better reasoning, is disapproved by all text
writers, and denied in our own State.
It was based upon a case in 1 Mod. 282, Lutteral v^ Regnell,
overruled in R. v. Parker, 3 Doug. 242. The courts of New
York and Pennsylvania first followed the case in 1 Mod. but
afterward adopted the rule, excluding such evidence except
in the instances specified in Stolp v. Blair, 68 lil. 544, as,
where the witness is charged with testifying under the influ-
ence of some motive prompting a false statement, it may be
shown he made a similar statement when the motive did not
exist; or where it is charged his statement is a recent fabrica-
tion, it may be shown he gave a similar account before its
effect and operation could have been foreseen, as in Gates v.
People, 14 111. 434.
188 Appellate Courts of Illinois. '
Vol. 39.] Steel v. Shafer.
Further than this the rule does not go. I QreenL, Ev.,
Sees. 469, 229; Whart.,Ev., 492; 2 Phil., Ev., 973, 964, 4th
Ainer. Ed., and p. 445; 1 Stark., Ev., 147; Whart., Cr. Ev;, Sec.
492, and eases there cited; Eobb v. Hackley, 23 Wend. 50, a
leading case, afterward followed in Dudley v. Bowles, 24
Wend. 465, and in Keed v. N. Y. 0. R Co., 45 K T. 576;
Gibbs V. Tinsley, 13 Yt. 208; Ellicott v. Pearl, 10 Pet 412;
Conrad v. GriflFey, 11 How. 480, 490; Stolp v. Blair, 68 111.
541; Smith v. Stickney, 17 Barb. 489; Rioly v. Yallandinghanu
9 Mo. 819; State v. Kingsbury, 58 Me. 238; Judd v. Brent-
wood, 46 N. H. 430; Munson v. Hastings, 12 Yt. 348; Moore's
Civil Justice, Sec. 1070; 17 Mich. 435; People v. Mead, 50
Mich. 228.
Prof. Greenleaf in Yol. 1, Sec. 469, says : " But evidence
that he has on other occasions made statements similar to
. what he has testified to on the cause is not admissible. The
cases, Cook v. Curtis, 6 H. & J. (Md.)93 ; McAleer v. Howley,
35 Md. 439 ; Hendrickson v. Jones, 10 S. & E. 332; and
Coffin V. Anderson, 4 Black (Ind.), 398, seemed to have been
founded directly or evidently on the case of Lutterell v.
Regnell, 1 Mod. 282, which long ago ceased to be authority
in England;" citing E. v. Parker, 3 Doug. 242, and in the
note: "Nor can an admission rebutted by evidence of con-
trary statements."
Henderson v. Jones, 10 S. & R. 332, was overruled in
Craig V. Craig, 5 Eawle, 91, and Good v. Goo<l, 7 Watts, 195.
In the note to Johnson v. Patterson, 2 Hawks, 183, S. C,
11 Amer. Dec. 757, the authorities are reviewed and the true
doctrine announced, that such evidence is- only admissible
when it is charged that the testimony of the witness is a
recent fabrication, and having its origin in some event
powerfully affecting his interests, or in some change in his
situation with reference to the transaction or to the parties,
when it is admissible to rebut the imputation by proving
declarations prior to such event or change, agreeing with
what he now swears to be the truth.
And by "recent fabrication" is not meant that merely
impeaching a witness by proving his prior declarations
Second District — December Term, 1890. 189
steel V. Sbafer.
contradictory of his testimony is an imputation of "recent
fabrication," for this would abrogate the rnle. Id.
By proof of recent fabrication is meant proof that the
witness has been recently bribed to make a false statement, or
the like. 1 Stark., Ev., Sec. 149 ; Robb v. Haekley, 23 Wend.
51.
The opinion of Bronson, J., in the case last cited is
exhaustive on the subject.
The modification by the court of appellant's ninth instruc-
tion would seem to indicate the court admitted the evidence
of prior declarations to show the condition of mind of appellee
at the time the injuries were inflicted.
The declaration was made after the injuries were inflicted,
and when appellee and Eafele were on their way liome. They
related to a past condition of the mind and were iDadmibsible.
" The declaration of the woman as to her suffering and
condition at any particular time are evidence of her state at the
time she made them. It is natural evidence u pon those points —
as lier appearance, seeming agony of mind and other phys-
ical exhibitions, would be. The gi'ound of receiving those
declarations is that they are reasonable and natural evidence
of the true situation and feelings of the person for the time
being. But in reference to past periods, they have no
such claim to confidence, as they are manifestly to that pur-
pose, but the narration of one not on oath.'^ Lush v. Mc-
Daniell, 13 Led.; S. C, 57 Amer. Dec. 568.
" The statements of the injured party subsequently, and
not substantially at the time of the occurrence, as to the cir-
cumstances, are not admissible." Note in 36 Amer. K., 828,
to Quaife v. C. & N. W. Ey. Co., 48 Wis. 513.
"And the declarations are admissible when they relate to
the feelings at the time, or to the nature, symptoms or effect
of the malady under which they are laboring at the time,
and are regarded as mere hearsay, so far as -they go beyond
this limit. They do not extend to the admission of declara-
tions as to previous malady or illness." Allen v. Van Cleve,
15 B. Mon. 236.
190 Appellate Courts of Illinois.
Vol. o9.] Steel v. Sh ifer.
Declarations of mental feelincijs indicating present pain or
maladj, when made at the time, are not to be extended
beyond tfie necessity on which the rule is founded." 5 Amer.
& Eng. Ency. of L., 361.
Only admissible when they relate to present condition or
State. 111. Cen. R. K. Co. v. Sutton, 42 111. 438; 2 Greenl.,
Ev., Sec. 102, n. 3.
Anything in the nature of narration is to be carefully
excluded, and the testimony is to be conlined strictly to such
complaints, excDimations and expressions as usually and
naturally accompany and furnish evidence of a present exist-
ing pain or malady. Id.; Bacon v. Charlton, 7 Cush. 581,
5b6; Whart., Ev., Sec. 268; Whart., Cr. Ev., 271.
'* To determine tlie condition of mind it is admissible to
])ut in evidence such expressions of the party as may be
shown to have been instinctive, and not to have been uttered
for the purpose of producing a particular eflFect. So, when
the extent of a mental or otlier disease is in controversy
are contemporaneous declarations of the person so affected,
though not as to conditions of prior diseases." Id. Sec. 272;
Weyrich v. People, 89 111. 96; 111. Cen. R R Co. v. Sutton,
42 ill. 438 ; C. & N. W. Ey. Co. v. Howard, 6 111. App. 573,
574; 1 Green., Ev., Sec. 110.
In this case the third plea put in issue the condition or
state of appellee's mind at the time of the infliction of the
injuries. First Nat'l Bank v. Mansfield, 48 111. 496.
If, as we have endeavored to show, the declarations of
appellee to Eakle were inadmissible, that error alone is
sufficient to warrant a reversal. To quote from the opinion
in Robb v. Ilackley, 23 Wend. 53, '* It is no answer to say
that such evidence will not be likely to gain credit, and
consequently will do no harm. Evidence should never be
given to a jury which they are not at liberty to believe."
Messrs. J. C. Seystek and M. D. Swift, for appellee.
The statement made by tlie appellee to the witness Eakle
when he first regained consciousness after the occurrence in
question is properly admitted. This statement was properly
Second District — December Term, 1890. 191
steel V. Shafer.
admitted to show the condition of defendant's niind at the
time.
In Reynolds v. Adams, 90 111. 135, and Cockeram v. Cock-
eram, 17 111. App. 604, it is held that statements of the
deceased whose will was contested are competent to show
mental condition at the time the will was executed, or so
near the time the same state of affairs must have existed.
But this statement was also admissible under another rnle
of law than the one which allows the admission of statements
as to a person's bodily or mental condition.
And this is the rnle, that where a party offers in evidence
statements of a witness or party at variance with what such
witness or party testifies, proof that such witness or party
has made statements in accord with his testimony is admis-
sible if such statement was made prior to such contradictory
statements in point of time.
This kind of testimony has been held to be admissible in
many cases among which are the following : People v.,Vaen,
12 Wend. 78; Jactson v. Etz, 5 Cowan, 320; Commonwealth v.
Bosworth, 22 Pick. 397; Cook v. Curtis, 6 Herr & Johns. 93.
And in Pennsylvania and Indiana such statements have
been admitted without reference to their priority. Parker
V. Gonsalus, 1 Serg. & Rawle, 536; Henderson v. Jones, 10
lb. 322; Coffin v. Anderson, 4 Blackf. 398.
Upton, J. This was an action of trespass vi et ar7nis by
the appellant against the appellee. In the trial court appellee
interposed three pleas : general issue, son assault deinesne and
a special plea alleging that appellant fii'st assaulted appellee
by blows upon the head with a club which so affected his
mind that he was unconscious and irresponsible for his imme-
diate subsequent acts, in inflicting upon the appellant the
alleged injuries complained of. Upon these pleas issue was
joined and three trials with a jury have been had thereon in
the Circuit Court of Ogle County. The first trial resulted in
a verdict for appellee and on motion a new trial was granted;
upon a second trial appellant obtained a verdict and a new
trial was granted; upon the thijd trial a verdict was returned
192 Appellate Courts of Illinois.
Vol. 39.] Steel v. Shafer.
for appellee, npon which judgment was rondei-ed for costs*
to reverse whicli, this appeal is prosecuted. We have been
led to state the result of the several trials of this case
in the Circuit Court to manifest the necessity of the caro
required in the instructions to the jury by the trial court.
The evidence in the case is quite conflicting.
The alleged errors in the trial court complained of by the
appellant here are :
First : That the court erred in giving to the jury the first,
second and third of appellee's instructions.
Second : In refusing appellant's ninth instruction as offered,
and in modifying the same and giving it to the jury so mod-
ified.
Third : In allowing a portion of the deposition of one
Eakle to be read in evidence as to statements made by ap-
pellee concerning his mental condition, etc.
First The first instruction oflEered by the appellee and
read to the jury appears to be good as a proposition of law;
but there does not appear to be any evidence on which to base
it, and therefore it ought not to have baen given. ♦
The second of ap])el lee's instructions violates the rule of
law laid down in Donnelly v. Harris et al., 41 111. 128, and
Scott v. Fleming, 16 111. App. 640, and was, therefore,
erroneous.
We perceive no objection to appellee's third instruction
given and we think it good.
Second. We think the tibial court erred in not giving to
the jury appellant's refused instruction numbered nine and also
committed a further error in modifying the same and giving^
it to the jury as modified.
Api^ellee could not call for and put in evidence his own
statements concerning the affray with appellant, or his own
statements as to his mental condition at the time of such
affray made at a time subsequent to the occurrence. This
would be allowing him to manufacture evidence in his own
behalf, which the law does not permit. It would bo but mere
self-serving statements at most, both in character and effect,
which are not admissible as evidence, and therefore the modi*
Second District — December Term, 1890. 193
Mettler v. Craft.
ficationof the instruction was erroneous. The instrnction as
offered by appellant stated the correct rule of law upon the
point to which it referred, and should have been given to the
jnry as asked, and the trial court erred in not so doing.
It is quite unlike the statement of a testator offered to show
his mental condition at the time of making a will, etc., and is
not governed by the same principle as that stated in Cockeram
V. Cockeram et ah, 17 111. App. 604, and kindred cases therein
cited.
. Third. The evidence contained in the deposition of Eakle
as to appellee's statements concerning his mental condition,
etc., which was admitted for appellee, does not appear to have
been especially objected to, and the other portion thereof was
proper evidence. The answer to the twelfth direct interroga-
tory of the deposition referred to was only objected to in its
entirety, as a whole, and a portion of tlie answer being proper
evidence, the general objection can not be made availing.
For the reasons assigned we think there is manifest error
in this record, and therefore the judgment of the Circuit
Conrt will be reversed and the cause remanded for further
proceedings not inconsistent with the views herein above
expressed,
Jieversed and remanded.
Ira Mettler
V.
Joseph Craft,
Beal PropMiy — Ejectment — BUI to Enjoin Execution of Judgment —
Establishment of Lien for Improvements by Defeotd Defendant — Chain of
Title — Estoppel — Constructive Fraud — Insufficient Evidence to Establish
Statute.
1. Upon a bill in equity, filed by a defeated party (the defendant) in an
ej^tment suit to establish a Hen and to recover for betterments on lots
which, at the time most of the betterments were placed theroon, were owned
You ZXXIX 18
194 Appellate Courts of Illinois.
Vol. 89.] Mettler v. Craft.
by a murried woman vrho owned the reversionary interest in fee and whose
title was of record and open to inspection, held^ it being admitted that the
case did not fall within the provisions of the ejectment law providing? for
the appointment of commissioners, etc., that the evidence failed to chnr^e
the defendants either with constructive fraud or with an estoppel, and that
the bill could not be mainbiined.
2. The statute of this State in regard to allowance for betterments to
a defeated party in ejectment was intended to cover the entire ground,
especially in cases where the defeated defendant takes the initiative and
the plaintiff makes no claim for rents and profits.
•
[Qpinion filed May 21, 1891.]
Appeal from the Circuit Court of Ogle County; the Hon.
James H. Caui'wbioht, Judge, presiding.
This was a bill in equity filed by the appellee against the
appellant, seeking to subject lots 9 and 10 in block 6, in the
city of Rochelle, .to the payment in the nature of a lien of a
certain sum of money expended by appellee and his interme-
diate grantors on the said lots by way of improvements, the
legal title to the same having failed, and appellant having
recovered the same in an action of ejectment against the
appellee. The facts in the case appear about as follows :
The lots, by government, description, were entered by
Sheldon Bartholomew, the father of Maria Ross, who died in
1846, intestate, leaving as his only heir the said Maria, who,
prior to lier attempted conveyance hereinafter mentioned,
became the wife of Isaac Ross, and also leaving his widow,
Charlotte A., who afterwaVd became the wife of Matthew B.
Powell, who died prior to the time of the attempted con-
veyance hereinafter mentioned; that of the marriage of the
said Maria and Isjiac Ross, there was issue born alone capable
of inheriting from its parents prior to the attempted con-
veyance of said Maria hereafter mentioned, so that at the
time of the conveyance by said Maria and her husband here-
after mentioned the said Isaac was endowed with a life
estate by curtesy in said lots, and Maria had an estate in fee for
the remainder. It appears that the said Isaac Ross and Maria
Ross and Charlotte A. Powell executed a supposed convey-
ance of said lots to Robert P. Lane, July 19, 1853, which was,
Second District — December Term, 1890. 195
Mettler v. Craft.
on the IStli of August, 1853, dulj recorded, but the said deed
made no mention of the fact that said Maria Koss was the
wife of said Isaac Ross, nor did the certificate of acknowledg-
ment of the notary public who took the acknowledgment
contain any statement or certificate that said Maria Ross, wife
of said Isaac Ross, was examined separate and apart from her
Imsband, or that the contents and meaning of the deed were
made known and explained to her, and hence, the acknowU
edgment and conveyance failed to conform to the statute
and was ineffectual to convey the reversionary estate of said
Maria Ross, which plainly appeared from the record, if the
grantee in said deed and the subsequent grantees be held to
acknowledge that the said Maria was at tlie time the wife of
said Isaac. It appears that said Lane by quit-claim deed con-
veyed the land to Thomas D. Robertson, November, 13,
1855, and on October .30, 1862, said Robertson conveyed the
same to*01)adiali Walrath; that on the Sith March, 1864, said
Walrath conveyed the same to Judson E. Carpenter; that on
October 16, 1868, said Carpenter conveyed the same to appel-
lee. These various deeds were duly recorded soon after their
execution. The first deed from the Rosses to Lane conveyed
about seven and three-fourths acres of land which were after-
ward by Lane laid out into town lots, in the original town of
Lane, now Rochelle, and the deed from Lane to Robertson and
the subsequent deed alone conveyed the town lots in question.
The master's report shows that he finds that the intention of
all the parties to the first deed was to convey to said Lane the
title to said lots in fee. It appears that said Walrath, while
he held the title, improved the lots by erecting a dwelling
thereon; that while said Carpenter held the title, he built
an addition to the dwelling-house on said lots, and made
improvements to the value of $700 or $800, and occupied the
same as a residence; that the appellee some time in 1869 made
valuable improvements on the lots by building a barn and
fencing to the value of $325, and in 1885 made further
improvements by building an addition to the house, putting
on a bay window and digging a well at a cost of about $850,
and that all taxes were paid on said lots by Lane and his
196 Appellate Courts of Illinois.
Vol. 39.] Mettler v. Craft
grantees, and that the lots had no rental value aside from the
improvements. The master further found the market value
of the improvements was §1,750. and the value of the lots
without them was $500. It appears that the said Maria Eoss
died in the year 1871; that Isaac Ross died in the year 1885.
It appears that the said Maria Koss continued to live near the
said premises much of the time after the land was laid out
into town lots — within one hundred to one hundred and
twenty rods of the said lots — within the said town of Lane,
until her death, in 1871, bein^ absent only about one year.
There is no other evidence that Maria Ross knew that any
of the improvements were bein^ put on the lots, nor does it
appear from the evidence that she ever gave any of the
parties acquiring an interest in said lots any notice that she
claimed any interest or title in the same. It appears that the
appellant recovered in an ejectment suit against the appellee
a judgment for the possession of the said lots and thfe title in
fee at the March term of the Circuit Court in the year 1890,
and that appellant derived title in fee to said lots by sundry
mesne conveyances from the heirs of Maria Ross, deceased.
The appellee claimed the said lots on his part through the
deeds from Maria Ross to Lane and from Lane to him by the
conveyances above set forth. This bill was filed by the appel-
lee claiming to be the equitable owner of the improvements
and to have an equitable lien on said premises for the value
of such improvements to the extent that they had increased
the value of the premises, and claiming that the appellant is
not entitled to the possession of the premises until he shall
have first paid appellee for the improvements, praying
that appellant should be enjoined from suing out and having
executed a writ of possession in said ejectment suit until the
value of the improvements and lots could be ascertained and
until the appellant should pay to appellee the value of such
improvements, and equitable relief.
The court referred the case to the master in chancery, who
took the evidence and reported to the court the facts as above
stated; thereupon the court found the issues in favor of appel-
lee and decreed that appellant pay him within one year $1;750
Second District — December Term, 1890. 197
Mjttler V. Craft.
for such permanent improvemente, or that appellant might at
any time within said time require complainant to pay him
§500, the value of said premises exclusive of the said improve-
mnnts, upon appellant conveying the said lots to appellee.
From this decree this appeal is prosecuted.
Messrs. O'Brien & O'Brien and Dixon & Bethea, for
appellant.
1. The life tenant can not charjre the remainderman with
improvements, even though of a permanent character.
Thurston v. Dickinson, 2 Kich. Eq. 317; Merritt v. Scott, 81
N. C. 385; Pratt v. Douglass, 38 K J. Law, 516; Austin v.
Stevens, 24 Me. 520; Riiney v. Edmonds, 15 Mass. 291.
The life tenant who makes improvements during the life
estate can not receive the benefits therefor under the occu-
pying claimants law. Note to Stewart v. Matheney, 14 Am.
St. R. 540; Smalley v. Isaacson, 40 Minn. 450; Barrett v.
Stradl, 73 Wis. 385; S. C, 9 Am. St. K. 795 and note, 805, 806,
on improvements generally; Elam v. Parkhill, 60 Tex. 581.
An exception is where the life tenant goes on and finishes
improvements begun by the donor of the estate. Corbett v.
Laurenes, 5 Rich. Eq. 301; Sohier v. Eldredge, 103 Mass. 345.
2. The rule in equity setting oflf to one tenant in com-
mon the improved portion enhanced by his meliorations, or,
in a proper case, compelling compensation, is based upon
principles peculiar to that class of cases. Then the owner
does not recover his land at law, but the proceeding is in
its inception and throughout purely equitable and all are
compelled to do equity. The land, if incapable of division,
must bo sold, and as an incident only is the improver entitled
to compensation.
3. There is another class of cases where it might at first
seem the remainderman was obliged to reimburse the life
tenant for improvements, but they rest on an equity peculiar
to themselves. That is, where lands are devised or conveyed
to trustees for one for life and another in remainder, power
is frequently conferred on the trustees to improve, sell and
reinvest, etc.
198 Appellate Courts of Illinois.
Vol, 39.] Mettler v. Craft.
If improvements are made out of the iDCome of the life
tenant, equity will make a proportionate charge upon the
estate of the remainderman upon the principle of carrying
out the trust.
4. And a doctrine akin to this, under some circumstances
finds a legitimate application to the case of a mortgagee in
possession who- makes improvements, or a purchaser under
a foreclosure sale when a junior mortgagee or judgment
creditor redeems. These are some of the exceptions, but the
rule itself is well established.
" The full doctrine of estoppel is not applied to a
married woman, because she is not sui juri^, but under dis-
ability." Stevenson v. Osborne, 41 Miss. 119; Lowell v.
Daniels, 2 Gray, 161; Keen v. Hartman, 12 Wright (Pa.), 497;
Martin v. Martin, 12 La. An. 86; Lothrop v. Foster, 51 Me.
367; Burns v. Lynde, 6 Allen, 305; Towlcs v. Fisher, 77 N. C.
443; Lyman v. Cessford, 15 la. 233.
"Hence, as she could not contract at common law, her
quasi contracts were not estoppels." Gliddcn v. Stnipler,
supra; Plumer v. Lord, 5 Allen, 460; Davenport v. Nelson,
4 Camp. 125; Bodine v. Killeen, 53 N. Y. 93; Todd v. Rail-
road, 19 Ohio St. 514.
'' Because this would remove her incapacity dnd allow her
to bind lierself by way of estoppel; but, in the absence of
lier husband's coercion, she can bind herself by way of estoppel
by some affirmative act of fraud; " citing Towles V. Fisher, 77
N. C. 443; Lyman v. Cessford, 15 Li. 233; Schwartz v. Saun-
ders, 46 111. 18; Oglesby Coal Co. v. Pasco,79 111. 170; Sharpe
V. Foy, (L. II.) 4 Ch. App. 35; Jones v. Frost, (L. R.) 7 Ch.
App. 713. Contra: Bemis v. Call, 10 Allen, 512; Palmer v.
Cross, 1 Sm. & M. 48; Eangley v. Spring, 21 Me. 130.
" A mere passive silence in regard to her rights is not such
a fraud as will amount to an estoppel." U. S. Bank v. Lee,
13 Pet. 118; Palmer v. Cross, 1 Sm. & M. 48, 68; Drake v.
Glover, 30 Ala. 382; Canty v. Sanderford, 37 Ala. 91; Hav--
ener v. Godfrey, 3 W. Va. 426; In re Lush's Trust (L. R), 4
Ch. App. 591.
" It must be a positive fraudulent act." Amsley v. Mead,
3 Lans. 116; Westgate v. Munroe, 100 Mass. 227.
Second District — December Term, 1890. 199
Mettler v. Craft.
" Such as where she had made a sworn disclaimer of own-
ership." Goolej V. Steele, 2 Head. 605; Lathrop v. Ass'n,
45 Ga. 483; Cravens v. Booth, 8 Tex. 243.
" Or her announcement at the sale of her husband's real
estate that she would not claim dower. (But tliis has been
doubted and is supported by one case only.)"
" Her active connivance in her husband's f i*aud." x\nderson
V. Armstead, 69 111. 456; Bodine v. Kelleen, 53 N. Y. 93.
" Or knowingly permitting him to gain credit on the faith
of property which in truth belongs to her."
" On the other hand, any contract which a married woman,
by false representations, induces another to enter into with
herself is not an estopj^el."
" She can only be divested of her property in the method
prescribed by law." Morrison v. Wilson, 13 Gal. 498; Mcin-
tosh V. Smith, 2 La. Ann. 758; Bisland v. Provosty, 14 La,
Ann. 169.
" Unless where the fraud is intentional, and reaching an
estoppel." Saxton v. Wheaton, 8 Wlieat. 238.
It may be difficult to reconcile Patterson v. Lawrence, 90
111. 174, with Weiland v. Kobick, 110 111. 16, where it is held
the fraudulent representations of a minor do not estop him;
but in this case it is unnecessary to attempt it, as the
furthest the case of Patterson v. Lawrence goes, is to hold a
feme covert estopped by her active or positive fraud.
The best and most authoritative discussion on the subject is
found in Oglesby Coal Co. v. Pasco, 79 111. 164, where the
court say : " The question must be determined with reference
to the law in force in relation to the 6e])arate property of
married women at the time the interest descended to Abigail
Pepson, and when the conveyances to John Corrigan and
herself were made, that is, the 4th day of May, 1865. 'The
weight of reason and autliority,' says Bigelow, in his work on
Estoppel, page 490, after a careful review of the adjudged
cases, * seem to establish the ])ropo6ition that a married
woman may preclude herself from denying the truth of her
representations, but only in the case of pure toftSj and that
if her ct)nduct is so connected with contract that the action
200 Appellate Courts of Illinois.
Vol. 39.] Mettler v. Craft.
sounds iu contract, there can be no estop j el.' " See Schwartz
et ux. V. Saunders, 46 111. 18, and Anderson v. Arnistead,
69 Id. 452.
But in Moiilton v. Ilurd, 20 III. 137, Lindlej v. Smith etal.,
58 111. 250, and Hutchings v. Huggins, 59 III. 29, it was held
that a married woman can only alienate her real estate by
joining with her husband in a deed, acknowledged as required
by statute, and that a court of equity has no power to ref(»rin
her deed for any mistake in its provisions or in the certil!i-;iro ,
of acknowledgment. And in Bressler et al. v. Kent, 61 111.
426, it was held the same doctrine is applicable to cases aris-
ing sincci the law of 1861. And Rogers v. Higgins et al., 48
III. 212, is a still stronger case.
The law presumes that our dealing with a person under
disability, and knowing the fact, intends to incur the conse-
quence of his acts, and equity will not relieve against him, or
otherwise afford relief.
In England a married woman is liable jointly with her
husband for torts committed bv her, but sIk* can not be made
liable on a contraclt on the ground that it was induced by
her fraudulent representations. 2 Lawson's Rights, Rejn. &
Prac, Sec. 754; Liverpool Loan Asso'n v. Fairbust, 9 Ex. 429.
Thus an action will not lie against a wife and husband
for a fraud of the wife in representing herself to be
single, whereby plaintiff was induced to take her promissory .
note. lb.
A married woman is not estopped from setting up her
coverture to an action on her judgment bond, by the fact that
she falsely represents herself as single, and thereby obtains
the consideration for which it was given. Keen v. Coleman,
39 Pa. St. 299; 80 Am. Dec. 524.
How it is in this State, where the wife, by active fraud or
passive fraudulent concealment induces another to enter into
a contract, seems to us to be unsettled, unless the cases of
Patterson v. Lawrence, 90 111. 174, and Wei land v. Kobick,
110 111. 16, can be reconciled. Be this as it may, tliere can be
no pretense in this case that there was any active fraud or
even fraudulent concealment — any jpure tort " not grounded
Second District — December Term, 1890. 201
Mettler v. Craft.
or predicated on contract." Compare Matthews et al. v.
Cowen et al, 59 111. 341.
It is said in Lawsou's Eio^hts, Kem. & Prac, 2701, that "to
pass an estate by estoppel the party must have power to pass
it by direct conveyance."
In discriminating between the decisions of the diflferent
States it should be borne in mind, as is said bv Schouler in
his work on Dom. Rel., 154: " That in some States the sepa-
rate conveyance of a married woman, or her execution jointly
with her husband, but witliout observance of the statute for-
malities, is void. But in others such irregularities are not
held fatal to the instrument, and she is bound on the usual
principles."
Of the latter sort the author cites Albany Fire Ins. Co. v.
Bay, 4 Comst. 9; Card v. Patterson, 5 Ohio, 319; Smith v.
Perry, 26 Yt 279.
This explains the decision in Hill v. West, 31 Amer. Dec.
442, to the effect that the covenants of a married woman in a
deed of her real estate estop her from asserting a subse-
quently acquired title.
The rule in our State is the other way. Lindley v. Smith,
46 111. 523; Rogers v. Eiggins,4S III 211; Mason v. Brock, 12
III. 273, and many other cases.
The same distinction is stated by Lawson, thus : In some
States her conveyance, even where her husband joins, but
without these statutory formalities is void; citing Bressler v.
Kent, 61 111. 426; while in others irregularities in the execu-
tion are not necessarily fatal to the instrument. 2 Law., R.,
R. & P. 741, citing the same authorities cited by Schouler,
and also Strickland v. Bartlett, 51 Me. 355; Hoi lings worth v.
McDonald, 2 Har. & J. 230; S. C, 3 Am. Dec. 545; Womack
V. Womack, 8 Tex. 397; 58 Am. Dec. 119.
In considering the question of estoppel i7i paiSy this distinc-
tion should be borne in mind as materially affecting the weight
to be given in our courts to the decisions in other States.
Massie v. Sebastian, 4 Bibb, 436; Nash v. Si)afford, 10 Met.
192; Colcord v. Swan, 7 Mass. 291.
An injunction will not be allowed against proceedings in
202 Appellate Courts of Illinois.
Vol. 39.1 MettJprv. Craft.
ejectnient broiio^ht by the owner of land after attaining his
majority wlio, while an infant, had contracted for the sale of
the land, and given a bond for tFie conve3'ance, but had ,
repudiated the contract on comingof age, and refused to ratify
the sale, even though the purchase money has been paid.
Browner v. Franklin, 4 Gill. 463.
An infant, if he lias parted with the consideration, may
disaffirm liis deed after, he arrives at age, without restoring
the consideration. Bennett v. McLauglilin, 13 111. App. 351;
Bishop on Contracts, 921; Green v. Green, 69 N. Y. 553;
Chandler v. Simmons, 97 Mass. 578; Bartlett v. Drake, 100
Mass. 174; Miller v. Smitli, 26 Minn. 248; Tucker v. More-
land, 10 Pet. 65; Shaw v. Boyd, 5 S. & K. 309.
Kfeme covert was not, under the law of 1861, or that of
1869, bound by her covenants in a deed, nor could she be
estopped by her declarations or admissions therein. Snell et
al. V. Sncll et al., 123 111. 403; Strawn v. Strawn et al., 50 111.
37; Botsford v. Wilson et al., 75 111. 135; Sanford v. Kane,
24 111. App. 509; Schouler's Dom. Rel., 155; Eawle on Cov.
for Tit., 251; Gonzales v. Hukel, 49 Ala. 260; Shumaker v.
Johnson, 35 Ind. 33; Thom|)son v. Merrill, 58 la. 419; Hobbs
V. King, 2 Met. (Ky.) 141; Hempstead v. Easton, 33 Mo. 142;
Wadleigh v. G]ines,6 N. II. 18; Dem d. Hopper v. Demarest,
1 Zabr. (N. J.) 541; Martin v. D welly, 6 Wend.l4; Carpenter v.
Schermerhorn, 2 Barb. Ch. 424; Dominick v. Michael, 4 Sandf.
Ch. 424; Groat v. Townsend, 2 Hill (N. Y.), 557; Edwards v.
Davenport, 4 McCr. U. S. C. C. 34; Lowell v. Daniels, 2 Gray,
168.
In some States it is provided .by statute that a married
woman shall not be bound by covenants in her deed though it
be pro])erly executed and acknowledged. Rev. Stat. 111. 1845,
Ch. 24, Sec.'l7; Rawle on Cov. for Tit, 251, citing enactments
of Virginia, Delaware, Illinois, Indiana, Michigan, Missouri
and Oregon; Strawn v. Strawn, 50 111. 33.
The great weight of authority is this way without the aid
of statutes. Rawle on Cov. for Tit., Sec. 306.
Mere acquiescence for three, or even ten years (in the
absence of any statute), after arriving at age, without any
i
Second District — December Term, 1 890. 203
Mettler v. Craft.
, __»IIMMl'- -BIIIMB --■ I —
affirmative act, is not a ratification by the infant. Jackson v.
Carpenter, 11 Johns. 542; Jackson ex dem. v. Durham, 14
Johns. 123; Green v. Green, 69 N. Y. 553; 23 Me. 517.
It is said in tiie case in 11 Johns. 542: <' It would be con-
trary to the benign principles of the law by which the
imbecility and indiscretion of infants are protected from
injury to their property, that a mere acquiescence, without
any intermediate or continued benefit, showing his assent,
should operate as an extinguishment of his title." With liow
much greater force do these principles apply to 2i feme covert ^
whoso contracts are absolutely void, and not, like an infant's,
merely voidable.
" In respect to property not settled to her separate use, a
married woman can not bind herself in equity in matter of
contract any more than she can at law, but coverture is no
excuse in equity for fraud. The acquiescence, however, of a
married woman in a transaction will not bind her if the
person with whom the transaction was entered into knew tliat
she was a married woman." Kerr on Fraud & Mis., 150;
iSM'choll V. Jones, 36 L. J. Ch. 554; Wilks v. Fitzpatrick, 1
Humph. 541; Glidden v. Strupler, 52 Pa. St. 400.
Acquiescence, silence, or the mere omission to assert her
rights, does not apply to or estop a married woman where
lier husband by fraud makes an unauthorized use thereof, or
obtains credit on the faith of her property. Kerr on Fraud
& Mis., 149; Bank of U. S. v. Lee, 13 Pet. 107; Hunter v.
Foster, 4 Humph. 211; Gatting v. Rodman, 6 Md. 289; Drake
V. Glover, 30 Ala. 382; Mcintosh v. Smith, 2 La Ann. 756;
Palmer v. Cross, 1 Smed. & J^L 48; Glidden v. Strupler
supra; Lowell v. Daniels, supra; Keen v. Coleman, 5 Wright
(Pa.), 299; Stephenson v. Osborne, 41 Miss. 119, 120; Martin v.
Martin, 22 Ala. 86; Lothrop v. Foster, 51 Me. 367; Plumer
v. Low, 5 Allen, 450; Davenport v. Nelson, 4 Camp. 25;
Bodino v. Killeen, 53 N. Y. 93,
Messrs. M. D. Hathaway and William Latheop, for
appellee.
It was settled long prior to Bright v. Boyd, 1 and 2 Story's
Keports, that courts of equity, where a complainant asked
204 Appellate Courts of Illinois.
Vol. 39.] ' ' Mettler V. Craft.
relief against a person in possession of lands who had made
permanent improvements under the belief that he was the
owner of the lands, compelled or required such complainant
to compensate such possessor, to the extent his permanent
improvements had enhanced tlie vendible value of the land,
as a condition of granting relief to complaijiant, and gave the
possessor a lien upon the premises for the payment of such
enhanced value. 2 Story's Equity Jurisprudence, 799 a, 799 b;
3 Pomeroy's Equity, Sec. 1241; Neesom v. Clarkson, 4
Hare, 97; Putnam v. Kitchie, 6 Paige, 390, Sec. 404.
Story's Equity was published in 1835; Putman v. Kitchie
was decided in 1837; Bright v. Boyd, decided by Judge
Story in 1841 and 1843.
In Bright v. Boyd, Bright was a purchaser at an administra-
tor's sale. The administrator's deed was void, because the
administrator had not observed all the requirements of the
statute in making sale and conveyance. Bright had taken
possession, and made valuable improvements. Upon being
evicted he filed his bill for relief, and a^^king pay for improve-
ments. While equity could not relieve against a defective
execution of a statutory power, it did grant the purchaser
relief to the extent of his permanent improvements.
In the case at bar, the deed of Maria Ross is void for
exactly the same reason, viz.: A defective execution of a
statutory power. Here the statutory power was one enablmg
a married woman to convey her . real estate, and the defect
was in the certificate of acknowledgment. As in the Bright
case, so here, the grantee upon being evicted because of the
defective deed, has filed his bill asking pay for his permanent
improvements.
For confirmation of this equitable ruling of Bright v. Boyd,
see 15 Am. Dec, Jackson v. Lomis, and reporteiV notes,
page 353; 30 Am. Dec, Scott v. Dunn, and reporters' notes,
pages 181, 182; 40 Am. Dec, Herring v. Pollard, Ex'rs, and
reporters' notes, 653, etc.; Union Hall Association v. Mor-
rison, 39 Md. 281; Hatcher v. Briggs, 6 Oregon, 31; Story,
Eq. Jur., see notes to Sees. 385, 388, 799 b, 1237, etc; Preston,
trustee, v. Brown, 35 Ohio State, 18; Thomas v. Thomas, 16
Second District — December Term, 1890. 205
Mettler v. Craft.
t
B. Monroe, 420; Hawkins v. Brown, 80 Kentncky, 186; Valle
V. Fleming, 29 Mo. 152; Kanawha Coal Co. v. Kanawha &
Ohio C. Co., 7 Blatchford, 391; Griswold v. Bragg and wife
48 Conn. 577; Eoss v. Irving, 14 111. 171, see 176-178;
Cable V. Ellis, 120 111. 136, see 152; 2 Warvelle, Vendors, Sue,
8, pages 904, 905; see also 10 Am. & Eng. Encjclop., page
243, etc.
Our own Supreme Conrt in Ross v. Irving, etc., 14 111. 171,
on pages 176 and 177, has not only fnllj indorsed and com-
mended the equitable doctrine of Bright v. Bovd, but has in
subsequent cases adopted and declared the rule of equitable
relief in quite as full and liberal measure as given in that case.
See Breit et al. v. Featon et al., 101 111. 242; Cable et al. v.
Ellis et al., 120 111. 136.
In this litigation certain persons not made parties came and
by petition intervened and prayed to be made parties, and
allowed a first lien on the premises for alleged improvements
made by them.
The court in passing upon their right to pay for improve-
ments, declared the rule in equity of payment for permanent
improvement as follows, viz.: see page 152.
"Through the research of counsel for appellee Ellis, our
attention has been directed to still another line of cases
bearing upon this question, and while no one of these cases,
because of variant and distinguishing circumstances, can be
accepted as decisive of the question here, or as embodying all
the elements of this equitable doctrine as recognized and
applied by the court, an examination of all the cases has satis-
fied us that the tnie rule is, that wliere improvements upon
real estate of a permanent character, are made in good faith
by one in possession, believing himself to be a honafide pur-
chaser or owner for value, and under circumstances justifying
such belief, and the expenditure is reasonable in amount and
of benefit to the estate, allowance may, in a court of equity,
be made therefor; but the person claiming such allowance
M'ill be charged with the value of the use and occupation of
the premises." Citing McConnel v. Holobush, 11 111. 61;
Breit \r. Yeaton, 101 111. 242; Bradley v. Snyder, 14 III. 263;
206 Appellate Courts of Illinois,
Vol. 39.] Metller v. Craft.
Miller V. Thomas, 14 111. 428; Gardner v. Diedericlis, 41 111.
158; Kinney v. Knoebel, 51 111. 112; Roberts v. Fleming, 53
III. 196; Smith v. Knoebel, 82 111. 392; Worth v. Worth, 84
III. 442; Ebelmesser v. Ebelmesser, 99 III. 541. .
From these cases the court extracts the equitable rule to
be applied in determining the rights of litigants. The rule
is announced with deliberation and without qualification.
It is to be observed furtlier that the rule of equity declared
in Bright v. Boyd and by our own Supreme Court is deduced
from the duty and obligations of the court to enforce what is
just and honest and to observe the maxim that no one be
suflfered to grow rich by the misfortune of another. The rule
is declared without exception, and neither infants nor married
women are excepted from its operation.
Our Supreme Court in Koss v. Irving, etc., 14 111. on page
183, declares: '*We can not but regard it (the occupying
claimant law) as highly equitable in its character and constitu-
tional in principle."
And the court in Potts v. Cullom et al., 68 111. 217, declares
that the Legislature, by Sec. 55 of the Ejectment Act, intended
to aflFord a speedy method of adjusting the value of perma-
nent improvements, and on page 220, says Sec. 55 "makes no
exception in cases where minors are plaintiffs, but is genera',
and seems to embrace all plaintiffs (in ejectment), regard-
less of disability." And equally without exception and
regardless of disability is the rule in equity wiiere the bojia
fide possessor is evicted and asks compensation for his per-
manent improvements.
A honajide purchaser without notice, within the meaning
of a court of equity, is one who has purchased under such
circumstances as to be protected in his purchase against prior
claimants. William et al. v. Tilt et al., 36 N. Y. 319; Dresser
V. Missouri & Iowa R R Construction Co., 93 U. S. 92.
Lacey, J. The only question for us to decide in this case
under the circumstances shown by the evidence is whether the
appellee has a right to maintain this action for the recovery
of the value of the improvements placed on the lots by the
Second District — December Term, 1890. 207
Met tier v. Craft.
various pjrantees of Lane's titlo, includina; those placed thereon
. by appellee.. It is admitted by the counsel for appellee that
his title is of such a character as to deprive him of the ri^ht
to the appointhient of commissioners to estimate the value of
the permanentr improvements in the manner provided for in
tlie Ejectment Act.
That act provides as follows: "Every person who may
liereafter be evicted from any land for which he can show a
plain, clear and connected title in law or equity deduced from
the record of some public office without actual notice of an
adverse title/' etCy may have his valuable Improvements
estimated and secured to him as provided for in the act.
This may be done by the appointment of commissioners to
ascertain the value of such improvements and by the allow-
ance of the same by the court as an adjunct to and continua-
tion of the ejectment suit as provided for in the statute.
It would seem plain that if these damages claimed by appel-
lee could have been assessed under the provisions of the statute
then appellee had a plain and adequate remedy at law
and the court below should not have entertained this bill.
This is admitted by the appellee in his brief, but he insists
and claims that inasmuch as Maria Ross was a married woiuan
and the acknowledgment of her deed to Lnno was not in the
form required by the statute to convey a married woman^s
estate, the record of title did not show on its face " a clear,
plain and connected titte in law or equity of record connect-
ing it with a public office," and therefore appellee could not
recover by virtue of the statute; but that he has an equity
outside and independent of the statute to recover for tlie
permanent imju-ovements by virtue of the principle of the
common law. It is insisted also, as one of the equities, tliat
the uncontroverted acts of Maria lioss in making the deed in
question to Lane and her presumed knowledge of the making
of the improvements on the premises constitutes a case of
constructive fraud so far as to charge her, lier heirs and
grantees, with the enhanced value of the premises by reason
of permanent improvements. It is thought that her acts,
while not sufficient to bar her title to the premises and that
208 Appellate Courts of Illinois.
Vol. 39.] Mettler v. Craft.
of her heirs and grantees, arc yet sufficient to estop her from
claiming tbe land free from the supposed lien oi, the incum-
brance created by the improvements.
We, however, take a diflfcrent view of the case on this
point, and see nothing in the acts or conduct of Maria Koss
to create an estoppel of this kind against her. At the time
she executed the supposed deed to Lane slie was a married
woman, the wife of Isaac Ross. Although this fact did not
appear from the face of the deed, it was as well known to
Lane, the grantee, as it was to her and Koss. She made no
representations to them wliatever, so far as the evidence
shows, and they were as capable of judging of the validity
of the deed as she was. If Lane supposed he was getting
her title in fee it was a mistake of law on his part as much so
as it was on hers. The law as well settled by "the weight of
reason and authority," says Bigelow in liis work on Estoppel,
p. 490, after a careful review of the adjudged cases " seems to
establish the proposition that a married woman may preclude
herself from denying the truth of her representations, but
only in the case of pure torts, and tliat if her conduct is so
connected with contract that the action sounds in contract,
there can be no estoppel."
This quotation from Bigelow is approved in Oglesby Coal
Co. V. Pasco et al., 79 111. 164. In this opinion several illus-
trations of the doctrine are given from decisions of tlie
Supreme Court of this State, such as, " If the wife fraudu-
lently permit her husband to represent himself as the owner
of her separate property, and procures mechanics to make
valuable improvements thereon without disclosing her owner-
ship or repudiating his authority, she is estopped afterward
from denying his authority to cause the improvements to be
made, when the mechanics seek to enforce liens for the pay-
ment of the amount due," and the like cases.
But in other cases it is shown to be holden that " a mari'icd
woman can only alienate her real estate by joining with her
husband in a deed for that purpose, acknowledged as required
by statute, and that a court of equity has no power to reform
her deed for any mistake in its provisions or in a certificate
Second District — December Term, 1890. 209
ft
Mettler v. Craft.
of acknowledgment" And it was held that '' the same doc-
trine is applicable in cases arising since the law of 1861,
relating to the separate property of married women, went
into force, as well as before." Another case therein cited
holds that ^' the law presumes that one dealing with a person
under disability, and knowing the fact, intends to incur tiie
consequence of his own act, and equity will not relieve him
against them, or othei'wise afford relief." In conclusion tlie
court says: " It is clearly deducible from these cases that a
wife can only be estopped in cases where she has been guilty
of actual fraud, either by suppression of some fact upon
which she knew the^ other party was relying, or a false rep-
resentation of material facts which induced action."
In Bobbins et al. v. Moore et al., 129 111. 30, the doctrine
of what amounts to an estoppel in pais is quite fully dis-
cussed, and the following rule is deduced from the authorities
there cited, to wit : " That where the foundation of the
estoppel is silence and omission to give notice of existing
rights, the party relying on the same must not have had the
means of ascertaining the true state of the title by reference to
tlie public record; but that such rule does not apply to a case
where the land owner has not actively encouraged and induced
tlie injured party to act. In the latter case the party making the
declaration acted on will be estopped, although he may have-
been ignorant of his true rights. The other party may rely
on his representations without further inquiry, and act upon
the assumption that he is cognizant of his rights and knows
the condition of his own title."
If we hold that this doctrine as above quoted is applicable
to the case of a married woman when it concerns her property
rights, we think it comes far short of governing a case like the
one at bar. If it be conceded that Maria Ross knew that the
intermediate grantees, Walrath, Carpenter and appellee, were
putting the improvements on the lots in question under the
supposition that they owned the title in fee, and she failed to
make known to them her claim to the property, there could
be no estoppel against her under the above rule, for we think
the evidence fairly fails to show that she was cognizant of her
Ydi. XZXIX 14
L
r
210 Appellate CoupvTS of Illinois.
Vol. 39.] Mettier v. Craft.
own rights in the premises, or that she actively encouraged or
induced either of the above named holders of the lots to
make the improvements which they did. The parties making
the improvements in question knew or might have known as
much about the condition of the title fit the time the
improvements were made as did Mrs. Ross. She was not the
inducing cause of the improvements being made and was not
called on by them to speak as to her rights; and she will be
presumed to have acted in equal good faith in not protesting
against tlie improvements, as they were in making them.
Furthermore, tjie fact that they held a life interest in the
estate of Isaac Ross, if known to Mrs. Koss, may have led her
to suppose tliat these improvements, if she knew they were
being put op the lots, were so being done with reference to
such interest in them as the parties actually held and not
under the supposition that they owned the title in fee. And
we understand the law to be that such would be the presump-
tion.
Neither of the occupying claimants, either before or after
the improvements were put on the lots, ever api)roached Mrs.
Ross in regard to the matter of placing such improvements
thereon or asked her in regard to her claim of title thereto.
And mere acquiescence, without some new fraud or tort, dur-
ing the continuance of the same situation in which the party
entered into the contract, goes for nothing. This is a general
rule of law. Gowland v. DeFarea, 17 Vesey, 20-25. Mr.
Carpenter and the appellee clearl3' knew, as the evidence
shows, before they placed any improvements on the lots, that
Mrs. Ross was the wife, and had been for many years, of
Isaac Ross, and nmst have been such when the deed to Lane
was made; they also must be held to have had constructive
notice, at least, as to what the record shows in reference to tlie
condition of their own title. We cite the following quotation
and authorities : " A purchaser is supposed to have notice of
any defect of title apparent on the face of his own papers or
by the record, ♦ ♦ ♦ but will not be required to look for
latent defects in the chain of conveyances when regular on their
face and apparently conveying the legal title." Robbins et al.
Second District — December Tehm, 1890. 211
Mettler v. Craft.
V. Moore et al., 129 111. 30; Hill etal. v. Blackweldcr, 113 III.
283; Dart v. Hercules et al., 57 III. 446.
The record shows tliat. Bartholomew, the father of Mrs.
Ross, was the patentee. The lirst coiivej^ance of record was
from Isaac Koss, Maria Ross and Mrs. Powell, the widow of
Bartholomew, deceased, to Lane. This on the face of the
record showed a break in the chain of title; certain facts
dehors the record must be known to one examining the title
in order to show a perfect chain of title. The first would be
that Bartholomew, the patentee, had died intestate and that
Mrs. Ross was his only heir; but as the record of the deed
to Lane showed that Mrs. RoSs liad conveyed the land by
another name than that of her maiden name, the natural and
necessary inquiry would be to one examining the title, how
her name came to be changed, and as she and lier husband
lived in Rochelle at the time, the least inquiry would have
led to a knowledge of the fact that she was the wife of Isaac
Ross at the time of the execution of the deed to Lane. These
facts were amply sufficient to )Jut Lane and the subsequent
grantees, if they did not otherwise know, upon their inquiry,
and having once been put upon their inquiry they must be
held to a knowledge of all the facts whicli such inquiry would
have disclosed. Doyle v. Teas, 4 Scam. 202, and many sub-
sequent cases. So that .Walrath, as well as Carpenter and
appellee, who had actual knowledge, must be held to notice
that Mrs. Ross was tlie wife of Isaac Ross when she executed
her attempted deed. We must also presume that as the
improvements put on the place by Walrath had been so long
ago that at the time the Carpenter and appellee's improve-
ments were put on, the lots must iiave been worth very little,
as the value of those put on by the two latter as shown by
the evidence far exceeded the entire value of the improve-
ments allowed by tlie court.
We now having disposed of the question of estoppel, we
next proceed to notice the claim of appellee that he had a
right to the allowance as against the appellant for the value
of the improvements put upon the lots as a matter of natural
equity. Many adjudged cases are cited by appellee and some
212 Appfxlate Courts of Illinois.
Vol. 39.] Mettler v. Craft.
authority from the text books in support of his position; but
we think none of them are applicable to this ease under the
laws of this State. The ease of Bright v. Boyd, 2 Story, 605,
appears to be very much relied upon, but upon examination
of the facts of that case, we find that it was there held that the
want of notice of the defects of title was essential to recovery.
If the occupant had notice or could have had notice by reason-
able search of the record, then we apprehend the rule would
not apply, and especially so as the statute requires the title to
be "clear, plain and connected of record." In the case at bar
the claim for betterments is attempted to be fastened as a lien
on the title itself of appellee. We nre of the opinion that the
statute of Illinois in regard to the allowance of betterments
was intended to cover the entire ground, and that such claims
are limited by the statute, especially in all cases where the
defendant takes the initiative and becomes the claimant for
betterments, and where the plaintiff makes no claim for rents
and profits. In the first place, the statute allows a claim for
betterments or improvements made on the premises to the
amount of the plaintiffs claim for rents and profits as may be
allowed by law to bo set off against such claim in favor of
the defendant in ejectment, and iu estimating the plaintiff's
damages for detention of the premises, the value of the use
by the defendant of any improvements made by him will not
be allowed to the plaintiff, but in no case will the proprietor
of the better title be obliged to pay to the occupying claimant
for improvements made after notice, more than what is equal
to the rents and profits. Aforesaid sections 41 and 54, Eject-
ment Act, laws of 1869.
This allowance is given by the statute whether the defend-
ant has a good or bad title, or no title at all, or without refer-
ence to his notice of whether he had a good or a bad title; but
it has no reference to a case where the charge for iniprove-
ment is sought to be recovered as a lien on the title of the land
itself. The above claims for betterments by the defendant
and also for rents and profits b}' the plaintiff were subject to
the statute of limitations, as other like claims which ran
against such improvements as well as the rents and profits.
Second District — December Term, 1890. 213
Mettler v. Craft.
commencing from the date of filing the suggestion of claim
under the 37th section of the act. Kinghouse v. Keener, 63
III. 230. There is only one case provided for in the statute
where a claim for betterments and valuable and lasting
improvements is allowed to become a charge against the land
itself, and that is provided for in the 47th section of the act;
'and that must be a case where the defendant can show a
" plain, clear and connected title in law or equity deduced
from the record of some public office without actual notice of
an adverse title in like manner derived from record," and in
that case " ho shall be free from all charges of rents, profits
or damages, provided he shall have obtained peaceable pos-
session of the land," as well as be allowed for the betterments.
But in this case it is admitted no such clear chain of title is
shown; otherwise the proper remedy of the appellee would
have been to procure the appointment of a commission under
the statute at the termination of the ejectment suit to estimate
the value of the permanent improvements and not by bill as
here attempted. See Asher v. Mitchell, 9 111. App. 335.
The Legislature, no doubt, intended to give a party who was
innocent of any defect in his title, and which showed on the
record to be good and a complete chain, the benefit of all
permanent improvements innocently placed on the land and
which enhanced the value thereof, even to the extent of com-
pelling the rightful owner to pay idr them before he should
recover the land or to accept the value of it without the
improvements and convey the legal title to the occupying
claimant. But it appears to us that the fact that the Legis-
lature by its enactment covered the above case and no other,
it by Implication excluded other cases, and especially a case
like the one at bar, where the defect in the title appeared
of record and where the occupant of the lots could only be an
innocent claimant by disregarding negligence and ignorance of
the laws of the land. It is a fundamental and general rule of
law that ignorance of law excuses no one. Every one is held
in his dealings to know the law, and equity will rarely relieve
against mistakes occurring on account of ignorance of the
law. In the present case the title was of record, and only an
214 Appellate Courts of Illi^^ois.
Vol. 39.] Mettler v. Craft.
examination of the record of the deed from Isaac Robs and
Maria Ross to Lane, with the knowledge which Carpenter
and appellee actually had and which Walrath was bound to
have, that Mrs. Ross was a married woman at the time, was
necessary to disclose the illegal nature of the conveyance.
It appears from the evidence that appellee and the inter-
mediate grantees between Lane and himself never even*
examined the deed to see whether it was a conveyance or not,
with the exception probably of the first grantee, Lane, who
alone can plead ignorance of the law, as the subsequent grant-
ees had not even informed themselves of the facts. But as
Lane made no improvements, his attitude in the matter is
immaterial. As illustrative that ignorance of law in. such
matters is no excuse, we cite Dart v. Hercules et al., 57 III.
446. The doctrine of the court in Cable et al. v. Ellis et al.,
120 111. 136 is cited. The court say as to the rule allow-
ing for improvements, that the rule is : " Where the im-
provements upon real estate, of a permanent character, are
made in good faith, by one in possession, believing himself
to be a ioiia fide purchaser for value, and under circumstances
justifying such belief, and the expenditure is reasonable in
amount, allowance may, in a court of equity, be made there-
for; but the person claiming such allowance will be charged
with the value of the use and occupation of the premises."
Tlie case in which the •above rule was laid down did not
involve a decision of the question, and the above could hardly
be regarded as authority. The rule, however, is no doubt
correct in a proper case, and in just what case it would be
applicable we are left in the dark. The class of cases cited
by the court in that case are cases where the complainant has
appealed to a court of equity for relief, and in such cases it
is a maxim of the law that he wlio seeks equity must do
equity. Courts are quite liberal in applying this rule in a
case where a court of equitj^ is applied to for relief. The rule,
as announced above, is restricted in its application to cases
where " the circumstances justify a belief in the claimant that
he is the bona fide owner of the land." Wo do not think, in
a case like this, that the facts could justify such a belief as
Second District — December Term, 1890. 215
Met tier v. Graft.
will appear from what we have said. The rights of minors
and married women are the peculiar care of the courts, and
we think the policy of the law would forbid that a feme
covert should be improved out of her estate, save in the case
provided for in this statute which we have abov^e quoted.
This is an unprecedented suit A bill in equity is filed by
a defeated party in ejectment to recover for betterments on
lots which, at the time the betterments, or the most of them,
were placed thereon, belonged to a married woman who owned
tlie reversionary interest in fee, and whose title was of record
and open to inspection, and it was only ignorance of law and
negligence to examine the title which caused the belief on
the part of appellee and his remote and immediate grantors
that they had a good title. It is not a case provided for in
the statute The appellant, the grantee of the legal heirs of
the original owner, Mre. Koss, is not coming into court to ask
equitable relief, but has already recovered his property in a
court of law. And we think there is no law authorizing
appellee to maintain this bill. It is entirely unprecedented
in this State, so far as we can discover. In 3 Pomeroy's
Eq. Jur., Sec. 3, 1241, the author says: "Under proper cir-
cumstances the owner is comi)elled to make compensation
when he himself seeks the aid of equity, but not, it is held
in Nieson v. Clarkson, 4 Hare, 97, when the one making the
improvements is an actor,^^ In the same section and para-
graph it is said : " If, therefore, the true owner can recover
his land by an action at law, equity will not, iii the absence of
fraiidy compel him to reimburse the occupant, even if in
good faith, for disbursements, mado. in repairs," * * *
and adding: " This rule has been changed by statute in sev-
eral of the States, which allow compensation to defendants
even in actions of ejectment when the land is recovered from
them, for the betterments which they have added to the land."
It will be seen that the statute of Illinois has changed the
rule; but as we have shown it fails to cover a case like the one
at bar, and outside of tiiat there is no remedy. And in
this case there is no element of fraud, as we have shown.
Graeme v. CuUen, 23 Gratt (Va.) 266, 298j Dawson v.
21 (> Appellate Courts of Illinois.
Vol. 39.] Freeman v. Arnold.
Grow, 29 W. Va. 333; 2 Kent's Com. 333, 338; Chambers et
al. V. Jones, 72 111. 275.
We are of the opinion that the bill can not be maintained.
The court 43elow therefore erred in passing the decree against
the appellant, requiring him to pay appellee $1,750 for bet-
terments on the lots. The decree of the court below is there-
fore reversed and the cause remanded to the court below with
directions to dismiss the bill.
lieversed and remanded vrith directions.
Oscar T. Freeman
V.
George L. Aknold.
Mechanics* Lien Law — When Lien Attaches— Moiigage—Friority,
Under Sees. 1 and 2 of Chnp. 82, R. S., a lien for labor or material
attaches at the time wben the contract under which the same was fur-
nished, was made.
[Opinion filed May 21, 1891.]
Appeal from the Circuit Court of Knox County; the Hon.
Arthur A. Smith, Judge, presiding.
Messrs. Hkndryx & Craig, for appellant.
Mr. George W. Thompson, for appellee.
Upton, J. This was a petition fora mechanic's lien, filed by
the appellee in the Circuit Court of Knox County, to the Feb-
ruary term thereof, 1S90, and to which Freeman, the owner,
and O'Conner, the mortgagee, were made parties. It appears
that in July, 18S9, Freeman (who alone appeals) contracted
with Geo. L. Arnold to do the mason work on a house he was
about to build upon a lot in the city of Galesburg, in the
petition particularly described. Appellee was to lay the brick
Second District — December Term, 1890. 217
Freeman v. Arnold.
in tlie wall, at $10 per thousand, cbinineys at sixty cents per
linear foot, plastering at twenty-four cents per square yard,
and to build a cistern for $25. The carpenter work was con-
tracted for with Elijah Arnold, for $850. The house was built
and finished some time in October, 1889. In the month of
October, about the 29th, James O'Conner took a mortgage on
the premises for $1,000 duly executed by appellant Freeman
as the mortgagor. On the 4rth of January, 1890, the petition
or claim for the mechanic's Hen in the suit at bar was filed by
the appellee, and the only issue of fact seems to be whether
the labor and materials, a lien for which is sought to bo
obtained in this proceeding, was included in the contract of
appellant with Elijah Arnold to build certain portions of
the house.
The evidence appears to be somewhat conflicting upon this
branch 'of the case, but the court below, on hearing, found that
issue for the appellee (petitioner below) and found due him
the sum of $148.04 for labor and materials, and ordered and
decreed that amount paid, etc., which was declared alien, etc.,
and a sale of the premises to pay such lien and costs, the
surplus arising therefrom, if any, to be first applied in pa}*-
ment of the mortgage, and the balance, if any there should be,
to Freeman. To which finding, order and decree Freeman
alone appeals to this court.
Appellant's counsel contends, first, that the mortgage to
O 'Conner became a lien u|)on the premises prior to the time
of filing the petition by appellee, and was a lien superior to
that of appellee; second, that the evidence does not support
. the decree; third, that the court erred in holding the lien of
appellee prior and superior to that of the mortgage.
The first and third points above made, may be regarded as
one and the same. In Clark v. Moore, 64 111. 273, it was held
that the lien of the laborer or material man attaches at the
time when the contract therefor is made. It is true that
decision was made in the construction of the first section of
the act in reference to "Mechanics' Liens" then in force, but
we think it will apply with equal force to Sees. 1 and 2
of Cliap. 82 Starr & C. 111. Stats., which last named act
218 Appellate Courts of Illinois.
Vol. 39.] City of Rock Island v. McEniry.
must control in the case at bar, iho second section of
which reads as follows: "Sec. 2. The lien provided for in
sections 1 and 29 of this act, shall extend to an estate in
fee, for life, for years, or any otlier estate, or any right
of redemption or other interest which such owners may
have in the lot or land, at the time of making the contract^^
This was in substance the language of the former act. The
same principle was announced in Hickox v. Greenwood, 94 111.
266, in which the several sections of the statute in question
were considered and their elTect determined. Second. Woi
liave carefully examined the record before us, and while the
evidence upon the question of fact is somewhat conflicting,
we are inclined to think that the Circuit Court was justified
in its finding for the appellee upon the facts of this conten-
tion and in the amount so found to be due him, viz., $148.94.
We also think that as the contract for doing tlie work
and furnishing the materials by appellee was prior in point of
time to the execution, delivering and recording of the mort-
gage to O'Conner as mortgagee, the mechanic's lien was a
prior lien to that of the mortgage. I3,ickox v. Greenwood,
supra; Clark v. Moore, supra.
If we ai'e correct in this view the decree of the Circuit
Court was not erroneous, and should be affirmed.
Decree affirmed.
City of Rock Island
V.
William McEniry.
Miwiapal Corporafhiis — Action by City Attorney to Uerorerfor Services
lieiideved outside County — Construct .on of Ordinance — Estoppel — Practice
— New Trial — Sufficiency of Evidence to Support Verdict.
1. A court is not 1>ound to grant a motion for a new trial because both
parties may assent i hereto.
Sgcoxd District — December Term, 1890. 219
City of Rock Island v. McEniry.
2. A city council ha*< power to rescind a vo'e to pay a certain sum in
settlement of a contested claim so long as such action of the council remains
executory.
[Opinion filed May 21, 1891.]
Appeal from the Circuit Coiirt of Rock Island County; the
Hon. Arthur A. Smith, Judge, presiding.
Mr. Joseph L. Haas, for appellant.
Mr. J. T. Kenwoethy, for appellee.
Upton, J. This action was assumpsit, brought by appellee
for services claimed to have been rendered to and for the
appellant by him while acting as the attorney of appellant,
duly elected, in suits and business of the appellant city outside
the county of Rock Island. It is conceded that appellee was
duly elected as such city attorney, qualified for and acted as such
during the time of the services for which he now seeks com-
pensation, aad that for and during the entire period of service
the following ordinance of the appellant city was in force and
effect, viz.: " The city attorney shall receive a salary of six
hundred dollars per annum, and a reasonable compensation
for professional services rendered in suits and business outside
of the county of Rock Island." It is conceded that during
appellee's incumbency of the office of city attorney of appel-
lant city, several suits were pending in the Henry County
Court, in which the appellant was plaintiff; that one suit
was also pending and was determined in the Appellate Court
of the Second District, in which the appellant city was a party,
and one suit pending which was lieard and determined in
the Supreme Court to which appellant city was a party also-
These several suits arose in reference to certain ordinances
enacted by the municipal -authorities of the appellant city
regarding the construction and maintenance of an abattoir, or
public slaugiiter-house, in the appellant cit}'.
Appellee claims that he rendered the services here sought
compensation for in his capacity as such city attorney for
api)eilant in that litigation. Appellee in June, 1889, pre-
sented to the appellant city council, at a regular meeting
220. Appellate Courts of Illinois.
Vol. 39.] City of Rock Island v. McEniry.
thereof, an itemized bill or claim for such services aggregating
§630, which was referred to the committee on claims of the
council, which committee made report therein in favor of its
allowance, but the claim was not allowed. Thereafter the
city council took up and considered the claim on two occa-
sions and npon each occasion refused its allowance. In
November, 1889, a special committee was appointed on the
petition of appellee by the city council, to which the appel-
lee's claim was referred for examination and report, which com-
mittee failed to find that any sum was due appellee, but
reported that appellee would accept the sum of $500 in full
payment of his entire claim. The city council tliereupon
voted to allow appellee $500 in settlement and compromise of
such claim. On the next subsequent meeting of that council
its former action allowing the claim was reconsidered and it
refused to pay anything upon such claim. Appellee then
claimed that appellant city, having voted to allow his claim at
$500, could not thereafter rescind its action; that its allowance
constituted a settlement thereof, and he demanded a warrant
for that amount, which was refused. This action oh the part
of the city council in rescinding its previous recited order, in
voting to allow appellee $500 as a compromise of his claim,
was objected to by appellee when offered in evidence on the
trial in the court below, but the court admitted the evidence
and appellee excepted thereto and the case was then tried on
a quantum meruiL There have been two trials. The first
trial was with a jury resulting in a verdict for the appellee
in the sum of $475, which verdict being set aside, on motion
a second trial was had, with a jury, and substantially under
like evidence and rulings by the trial court, resulting in a
judgment for the appellee in the sum of $288; amotion for a
new trial having been interposed by appellant, appellee con-
fessed said motion in open court and the several causes in said
motion assigned, but the trial court of its own motion over-
ruled the same and rendered a judgment on the verdict, to
which exceptions were taken by both parties, and the defend-
ant below appealed to this court.
It is conceded that appellee hold the office of city attorney
for the appellant city from the spring of 1887 to the spring
Second District — December Term, 1890. 221
City of Rock Island v. McEniry.
of 1889. Appellant's counsel here ask our consideration and
determination of the foUowinoj questions as proposed by it :
First Does tlie ordinance recited apply to the case pre-
sented by appellee ?
Second. If so, did he render such service ?
Third. If so, were the interests of appellant subserved
thereby ?
Fourth. Conceding an affirmative answer to be given to
each of the foregoing questions, what are such services rea-
sonably worth ?
The first question propounded is one of law, to which we
answer, that, in our judgment, the case made by the evidence
in this record is within the letter and spirit of the ordinance
providing for a reasonable compensation to its city attorney
(appellee) for professional services rendered in suits and
business outside the county of Hock Island over and above
the amount of the salary of such attorney of $600.
The other questions are entirely questions of fact, and if
the evidence in this record on the part of the appellee ([)laint-
iff below) is sufficient to warrant the jury in their findings
and in the verdict rendered, the judgment of • the Circuit
Court thereon ought not to be disturbed, the rule of law
being that the verdict of a jury upon questions of fact alone,
wliich have been fairly submitted, must stand, although it
may appear to be against the weight of the evidence, unless
it is apparent on the face of the record that the jury were
actuated by passion or prejudice. She! ton v. O'Riley, 32 111.
App. 640, and many other cases in this State to the like effect,
not necessary to be cited.
From a careful examination of this record we are inclined
to think the evidence supports the verdict. It is true that
according to the testimony of the witnesses for the appellant
the services rendered by appellee were of small value, not
exceeding $110; on the other hand, the appellee's witnesses
place the value thereof at from $500 to $1,000. From all
the evidence we are inclined to think that the witnesses for
, the appellant rather underestimated the value of appellee's
services, and took rather a narrow view of their merit
Appellee was in these cases, as it appears, for some time asso-
222 Appellate Courts of Illinois.
Vol. 39.] City of Rock Island v. McEniry.
ciated with other counsel, it is true. The case in the Supreme
Court, it seems appellee took charge of, with other counsel
which he employed; in view of the further fact that he per-
sonally attended in part to the case in this court we are
inclined to think the jury were warranted in their finding,
and that we would not be justified in interfering witli the
verdict rendered. But it is insisted that the trial court should
have granted appellant's motion for a new trial, because both
appellant and appellee assented thereto, and hence the trial
court was in error in refusing a new trial. In other words, it
is insisted as a matter of law and right that the courts of this
State must allow a re-ti*ial or rehearing in all cases wliere
both parties agree thereto, and the courts before whom such
cases are pending have no disci-etion in that regard. We are
not prepared to yield or assent to that proposition. We think
the court had full power to grant or refuse the new trial in
the case at bar on the motion made therefor, with or without
the consent of either party ^ or even without any motion being
filed hy eith^.T party therefor^ if satisfied that the ends of
justice would he best subserved thereby, or required it to be
done. We regard that as one of the discretionary powers
of the courts necessarily incident thereto for the furtherance
of justice in judicial proceedings. Any other rule would be
promotive of endless litigation, productive of little, if any,
good, in our judgment.
The trial court did not err in holding that the appellant, by
the vote of its council to pay appellee the sum of $500 as a
compi'omise of his itemized claim for $630, were estopped
from rescinding such vote at a subsequent meeting of its
council. Its power to rescind former action continued so long
as that former action remained executory; until that time it
was, in effect, but a proposition for the settlement of appellee's
claim, unexecuted, binding upon neither party, and subject to
be accepted or rejected by either part}'. No complaint is
made as to the giving, refusing or modification of instructions
asked or given the jury on the trial, and finding no reversible
error in this record, the judgment of the Circuit Court must
be aflSi-med.
Judgment affirmed.
Second District — December Term, 1890. 223
'" ' ^ ■■■■■■■■■■■ I ■ ■ I ■ ■ ■ . I , » ^^^^— I ■ ^■-^^^»i^i^» ■ , ^ ■ I ■ ■ ■
Hanks v. The People.
Joseph J. Hanks
V.
The People of the State of Illinois.
Ih-am-ahops — Sale of Liquor — Criminal Prosecution for — License
Issued under Void Ordinance as Defense,
Where a license to sell intoxicating? liquors is issued under an ordinance,
regular on its face, purporting to have been pasi^ed by the board of trustees
of the villaisre, and ni^ned by the village president and duly published, such
license, when accepted and paid for in good faith, is a defense against a
criminal prosecution for selling liquor, although the ordinance in question
was not legally passed.
[Opinion filed May 21, 1891.]
Appea^l from the Circuit Court of Warren County; the
Hon. John J. Glenn, Judge, presiding.
Messrs. Gribr & Stewart and Charles A. McLaughlin,
for appellant.
Messrs. Edgar MacDill, State's Attorney, and Kirk-
PATRicK & Alexander, for appellees.
C. B. Smith, P. J. This was an^ndictment against appellant
under the "Dram-shop" Act. He was charged with selling
intoxicating liquors in less quantities than one gallon. The
defendant pleaded not guilty, and waived a jury, and a trial
was had before the court by agreement, and the defendant was
found guilty on sixteen counts, and fined $20 on each count.
From tluCt judgment a]ii)ellant prosecutes this appeal. There
is no controversy about the facts. The following stipulation
was made in the record, viz. :
"Stipulation that record should show that defendant admit-
ted sixteen sales at time charged in indictment, and that sales
were of liquor to be drank on premises, and were made in
Eo&<5ville, Warren Co., Ills. That Koseville is a village incor-
224 Appellate Courts of Illinois.
Vol. 39.1 Hunks v. The People.
porated under general law, and that sales were made in less
quantities than one gallon and were intoxicating liqnors.^^
It will be seen by this stipulation that the defendant admits
making the sale as alleged in the indictment, but he insists tliat
he had a lawful right to sell by virtue of a license duly issued
to him by the corporate authorities of the village of Kose-
ville. It was not denied by the people that the defendant did
have a license in all re8|)ects formal, and that he had tiled the
bonds required by the village and the statute. The .conten-
tion of the people is that the license was void. It appears
that the village of Roseville attempted to exercise the power
delegated to it, and on May 5, 1890, passed an ordinance
providing for the granting of licenses for the sale of intoxi-
cating liquors within the corporate limits of the village, which
ordinance was duly signed by the president of the village board,
attested by the cleik, copied into the book of ordinances
of the village, and on May 9, 1890, duly published in the
Eoseville Times, a newspaper published and circulated in that
village. The ordinance was regular on its face, purported to
have been passed by the board of trustees of the village, and
signed by the president; was published by authority, and war,
at least priTnafacie^ a valid ordinance and a valid law. The
defendant made application for a license to keep a "dram-
shop" under said ordinance, tendered his bonds to the village
and State, which were accepted by the village authorities and
are still retained by them; lie paid the required license fee,
which is still in the hands of the village, and thereupon there
was issued to him under the hand of the president and clerk
of the village board and under the corporate seal of the village,
. a license to keep a "dram-shop" within the village. He in
good faith went into business under this license, and for sales
made under it he is indicted, and has been found gurlty by the
court below on the ground that the ordinance was invalid, the
license issued under it a nullity, and the sales made under the
license illegal and criminal without regard to their intent.
It appeared from the evidence that the ordinance passed by
the village authorizing the issuing of licenses to keep a dram-
shop was not legally passed, it lacking one clement required
by law, when it was upon its passage, to make it a valid ordi-
Second District — December Term, 1890. 225
Hanks v. The People.
nance. Bnt this objection was not made to the validity of the
ordinance by any of the village authorities, at the time, nor
since that, so far as we are informed from this record. The
ordinance was duly recorded, signed by the proper officers and
duly published for the required time. It was under this ordi-
nance that the license was issued to appellant, and it was
under and by virtue of the license so issued that he sold the
liquor for which he was indicted and convicted. There is no
proof in the record to show that appellant had any knowledge
of any infirmity or illegality in the ordinance, or that he was
acting in collusion with the city officials to get a license, with-
out being lawfully entitled to it. We find nothing in the rec-
ord to impeach the good faith of appellant in taking out and
paying for the license in question.
The only question presented, therefore, for our consideration
iu this record, is whether, under the admitted facts in the
case, the appellant was criminally liable for selh'ng intoxicat-
ing liquors. Wo think appellant was not liable. He had the
license ro(iuired by law and had executed his bonds, and so
far as it was in his power he had complied with the law^
and honestly supposed he had a lawful right to make the
sales. He had a right to presume tliat the village authori-
ties had followed the law in passing the ordinance in question,
and publishing* it. He was under no obligation to examine
the records of the proceeding of the village board, and see
whether they had followed the law in passing the ordinance-
As well require every citizen of the State to know at his peril*
or go and examine the journals of the General Assembly, to
see whether the Constitution had been complied with in the en-
actment of laws before hecouldact under a law duly published
in the statutes of the State, as to require every citizen of a
city or village to go and examine the', original proceeding of
the council before he could act nnder an ordinance. We
think it would be most unreasonable and burdensome to
impose such duty upon the citizen in either case; and so it
was held in The People ex rel. v. Loewenthal, 93 111. 191, that
in the case of legislative enactments the citizen might rely
upon and presume that the laws duly passed and published,
Vol. XXXIX 1ft
226 Appellate Courts of Illinois.
Vol. 39. 1 H inks v. The People.
and purportinor to have been duly passed, were legal and
valid enactments. We think there is no distinction in prin-
ciple between the rule being applicable alike to both cases.
vWe do not hold, or intend to be understood as holding, that
by indulging this presumption as to the regularity of the
passage of an ordinance, that parties are thereby excused from
being chargeable with a knowledge of the law in all cases,
whether arising under an ordinance or statute. The presump-
tion indulged of the regularity of the acts of the village
council relates to the existence only of a fact, and not as to
the meaning or requirement of an ordinance or law in act-
ual exiBtence. We think the evidence here entirely fails to
show any criminal conduct on the part of ap[)ellant, or any
purpose to violate tlie law, or that he had any knowledge that
he was violating it; and we think it would l>e a violation
of every principle of the criminal law to convict a man under
such circumstances. The village took appellant's money for
his license, and have kept it, aud never oflFered to return it.
In the case of The People v. Mettler, opinions filed at
Ottawa, November 26, 1S90, the defendant was indicted for
cutting down certain trees in a cemetery in violation of the
statute and appropriating them to his own use. The cemetery
was incorporated and under the control of a board of direct-
ors, who only could act in their corporate capacity. The
defendant alleged in his defense that he did the act under
the advice and consent of the individual members of the
board, and for the purpose of improving and bettering the
condition of the cemetery. It was objected that he could not
lawfully get the consent of the corporation to do the act
complained of, by mere individual action of separate members
of the board, and he was not allowed to show on his trial
that he acted upon their advice and in good faith without
intending to violate the laws or do any wrong. On appeal to
the Supreme Court it was held the evidence was competent
to show the absence of a criminal purpose, and to show that
he supposed in good faith he was justified and authorized to
do what he did in fact do, although it might afterward aj>j^ear
that the parties who directed him to cut the trees were not
Second District — December Term, 1890. 227
Wilson V. Challis.
acting witliin the requirements of the law so as to confer
legal authority on Mettler to cut the trees.
We think the principle announced in that case applies to
and covers the one at bar. We are therefore of opinion
that the conviction of appellant was wrong, and that the
finding and judgment of the court was contrary to the evi-
dence and the law, and the judgment will be reversed and
remanded. ,
Reversed and remanded.
John T. Wilson
V.
James T. Challis.
Sales — Reschsion for Fraud — When Vendor JElxeused from Placing
Vendee in Statu Quo.
The rule that a vendor can not rescind a sale on the ground of fraud
without placing the vendee in statu quo is subject to exception, where the
vendee has by his own acts put it out of the power of the vendor to place
him in statu quo,
[Opinion filed May 21, 1891.]
Appeal from the Circuit Court of Livingston County; the
Hon. N. J. PiLSBCKY, Judge, presiding.
Messrs. MoIlduff & Tokeancb and D. L. Bishop, for
appellant.
Mr. George W. Patton, for appellee.
C. B. Smith, P. J. This was a replevin suit by appellee
against appellant, who was sheriff of Livingston County, to
recover a lot of boots and shoes which appellee claimed. The
material facts out of whicli this controversy arose are sub-
stantially as follows : Harris, John and D. Rosenthal are three
brothers, and all of them dealers in clothing. Harris Rosenthal
228 Appellate Courts of Illinois.
Vol. 39.] Wilson v. Challis.
■ *
lives in Indiana, John and D. Kosentlial live in Livingston
County, Illinois, and John carried on a store in Culluni, but
carried it on in the name of his brother D. Rosenthal. James
T. Chalh's through his traveling salesman made sales of goods
from time to time to John Rosenthal, but without knowing he
was dealing with John. John always represented himself as
D. Rosenthal, and carried on the store in that name and repre-
sented himself as being D. Rosenthal. At various times when
these goods or parts of them were bought, John represented
that he was making money and owed little or nothing, and in
order to induce appellee to think he was carrjn'ng a large
stock, he had his shelves all filled with empty shoe boxes,
with but a single pair of shoes, with one of them hanging out-
side the box. John informed appellee's agent that he owned
the store and owed but a small amount, and by deceitful
practices and falsehood obtained the goods which are the sub-
ject of this suit. In point of fact D. Rosenthal had no interest
whatever in this store nor in the stock of goods, nor had ever
bought them. While some of these goods, so fraudulently
obtained from appellee by John Rosenthal were still in the
store, Harris Rosenthal obtained a judgment against his
brother D. Rosenthal, and had an execution j)ut in the hands
of the sheriff, and levied upon the goods in question as the
goods of D. Rosenthal, but which were in fact in the posses-
sion of John Rosenthal. Appellee having discovered the
fraudulent practices of John in getting these goods under his
brother's name, and upon false and fraudulent representations
of his ability to pay and the amount of his stock, thereupon
replevied the remnant of goods from the sheriflf. A trial was
had and resulted in a verdict and judgment for appellee.
Appellant brings the record here and assigns various errors.
Tlie chief contention on the part of appellant is based on the
claim that appellee could not rescind the sale for fraud unless
he could get hold of all the goods obtained from himy^ or
unless he restored John Rosenthal to his original position by
refunding what money he had paid on some of the goods.
While the general rule undoubtedly is that a seller can not
rescind a sale without putting the buyer in statu guOy still this
Second District — December Term, 1890. 229
Uuber v. Schmacbt.
rule has its exceptions and the case before us illustrates it
and furnishes an exampla In this case the purchaser has put
it out of the power of appellee to restore the parties to their
original condition. He has sold a part of the goods, and
received the money for those sold. The fact that appellee
can not find all the goods obtained from him fraudulently, is
no reason why he may not take such as he can find. We
think the jury was justified, under the evidence in this case, in
finding that John Eosenthal obtained these boots and shoes
fraudulently from appellee and that the verdict was right.
It is also urged as error that the court erred in giving the
fourth and fifth instructions for appellee. While these in-
structions have no evidence to support their assumptions,
still, it did appellant no harm to give them, for the reason
that it is certain frofti the evidence that D. Rosenthal had
no interest or ownership whatever in the goods, and the
giving these instructions, though without evidence in their
support, could do appellant no harm. Finding no reversible
error in the record, the judgment is afllirmed.
Judgment affirmed.
Ignatz Huber
V.
Herman Schmacht.
Pracike— Question of Fact— Effect of Verdict,
This court is not authorized to set aside a verdict where no question of
law is involved, unless the verdict is clearly against the weight of evidence.
[Opinion filed May 21, 1891.]
Appeal from the Circuit Court of Eock Island County-
the Hon. Aethub A. Smith, Judge, presiding.
Messrs. E. H. Guteb and Adair Pleasants, for appellant.
230 Appellate Courts of Illinois.
, 39 230
49 480
I 39 25
Vol. 39.] Westphal v. Austin.
Mr. Joseph L. Haas, for appellee.
0. B. Smith, P. J. This was a suit brought on a promis-
sory note tor $250 executed by Herman Schmacht to appel-
lant, Huber. Huber claimed that there was still due and
unpaid, $150 on the note. Appellee set up the defense of
payment Of the note in full, and also filed a counter claim
against appellant for repairs and money paid on account of
appellant. The cnse was tried before the court and a jury,
and the jury rendered a verdict in favor of appellee on his
otfset, and assessed his damages at $75.65. The court over-
ruled a motion for a new trial, and gave judgment on the
verdict. Appellant brings tlie case here on appeal, and
insists that the verdict and judgment are against the evidence.
No other question is presented. An examination of the
record shows that the evidence upon the payment, as well as
upon the counter claim or set-off of the defendant, was
sharply conflicting. Under the evidence the jury might
have found either way, and there would have been evidence
to support such a finding. It was for the jury to say who
of these witnesses were most worthy of belief. We can not
say they were mistaken, or that they erred in their judgment.
Before we are authorized to set aside a verdict we must be
satisfied that it is clearly against the weight of the evidence.
We are not so satisfied in this case, and the judgment will be
affirmed.
Judgment affirmed.
3» 230/
^^ 837/ Emil Westphal
V.
Albert Austin, by Next Friend.
Dram-shops — Injury to Plaintiff'e Means of Support — Evidence^Caus-
afion — Practice — Instructions,
1. In an action broujfht by a minor by next friend, under the Dranj-shop
Act, to recover for alleged injuries to plaintiff's means of support by reahov
Second District — December Term, 1890. 231
VVeslphal v. Austin.
of defencla.'it's sales of intoxicating liquor to plainti£P'8 father, thereby
cau»in)r the death of plaintiff^R father, held, first, that the evidence failed to
show that the death of plaintiff *j} father was caused by the sales of liquor
shown, and second, that the evidence did not sufficiently show that plaintiff
bad suffered in his means of support through the death of his father.
2. Where the instructions complained of are not abstracted, this court
will not consider the objections made thereto.
[Opinion filed May 21, 1891.] .
Appeal from the Circuit Court of Whiteside County; the
Hon. John D. Cbabtbee, Judge, presiding.
Mr. J. E. MoPherean, f or appellant
Mr. J. D. Andrews, for appellee.
Upton, J. This is a suit under the Dram-shop Act, brought
by appellee, a minor, by his next friend, against the appellant
The declaration contains two counts. Tlie first count alleges
that appellee was the eon of one Martin Y. Austin. That
prior to January, 1880, the father had carried on and success-
fully conducted business at Morrison, in Whiteside county, and
Iiad furnislicd and until that time had provided jfor the appellee
a comfortable support. That between the date last aforesaid
and December, 1885, the time of his death, appellant sold Mar-
tin Y. Austin intoxicating Iquors at his saloon in Moh'ison, and
thereby caused him to become a habitual drunkard and to
squander his property, become impoverished and physically
ruined, and unable to provide for thesupix>rt of the appellee
by means thereof, etc. The second count is in substance the
siimo as the first, with the additional allegation that in conse-
quence of ap^Kjllant's wrongful sale of intoxicants to the father
of appellee, he became diseased and disordered and from
the effects thereof died, etc. In brief, appellee's claim for
damages rests upon the allegation, first, that the appellant
caused the father of ap|>ellee to become a habitual drunkard,
thereby injuring appellee's means of support; and second,
that by the same means appellant caused the father's death,
and thereby injured his means of support
232 Appellate Courts of Illinois.
Vol. 39.] Westphal v. Austin.
A plea of the general issues was interposed, and joinder
thereon. The case was heard in the trial court before a jury
and a verdict returned for appellee in the sum of $300, upon
which judgment was rendered, after overruling a motion for
a new trial, and the case was brought to this court on appeal.
It is here objected on the part of appellant — first, that
the trial court erred in giving certain instructions on be-
half of appellee; second, that the trial court erred also in the
exclusion of evidence offered by the appellant; and third, that
the trial court committed further error in refusing a new trial
on appellant's motion therefor, for the alleged cause that the
evidence does not support the verdict.
First. As to the instructions complained of we need only
say, that the instructions are not abstracted, and we are not
required to look into the record to ascertain what they are.
The rules of this court require that a complete abstract be
made of that portion of the record, at least, upon which error
is assigned, so that the court therefrom may see to what the
objection is taken. Such was the holding of the Supreme
Court under its rule of practice which was adopted by this
court upon its organization, and since followed, and from
which we do not at present feel at liberty to depart. Shackel-
ford V. Bailey, 35 111. 388; Johnson v. Bantock, 38 111. lU;
Israel V. Town of Whitehall, 2 111. App. 609; Hanchett v.
Riverdale' Drainage Co., 15 111. App. 6^; Village of Chats-
worth V. Ward, 10 111. App. 77.
Second. Upon careful examination we think the trial
court committed no error in the exclusion of the evidence com-
plained of as rejected.
Third. The important question in the case, as we regard it,
remains to be considered, viz. : does the evidence support the
verdict ? It seems established by the evidence that at the
time of his father's death, appellee was nearly eighteen years
of age; that prior to the year 1880 the father had been
engaged in farming. In that year he abandoned that pursuit,
removed to the village of Morrison, and there engaged in the
business of buying and selling stock. For some years before
he discarded agricultural pursuits, the father liad been accus-
Second District — December Term, 18P0. 233
Westphal v. Austin.
tomed to drink iutoxicatinfif liquore to excess; but for how lon^
a time prior thereto does not appear. It does appear that
prior to 1880 the father had drank intoxicating liquors at the
appellant's saloon on several occasions. Some time in the
early part of the year 1882, appellee, Jiaving had some trouble
with a servant of appellant in reference to his drinking, and
of his being upon the public streets in an intoxicated condition,
appellant, in the language of the witness, placed Martin V.
Austin upon the black list at his saloon, and from thence
, until his death in December, 1886, Austin neither obtained
nor drank intoxicating liquors at appellant's saloon, with one
exception of a single glass in December, 1882, as shown by
the evidence, and as to that there is a sharp conflict in the
evidence. It further appears that the father of appellee was
well adapted to the business in which he was engaged, and
that his habits of drinking were not observed to have had any
marked or deleterious effect upon his capacity for business or
in the amount of the business done prior to 1882. Some of
the witnesses called for appellee, among whom were those
who had been engaged as copartners with appellee's father
until about one year prior to his death, testified in substance,
that prior to 1882 his business habits were good. It appears
that tliere was no cliange in the general health or appearance
physically of the father of ap])ellee from 1881 until just
before his death, although for the last year in his life he was
not engaged in business. Hannah M. Austin, the mother of
appellee, testified that her husband, Martin V. Austin, died
December 3, 1885, having been sick but six weeks preceding
liis death. Tliat prior to the last year of her husband's life,
tlie character of the support of his family was good, and that
she and her husband kept house together from April 6, 1863,
until his death. Tiie physician who attended the father of
[ appellee in his last sicknesF, testified that the father was
afiiicted with the dropsy, caused by a trouble of the liver; the
disease of which he died was called scirrhosis of the liver.
He lived about four weeks after the doctor commenced to
treat him. The doctor had known the father since 1882, and
had seen him intoxicated, and he thought his death was
I
234 Appellate Counts of Illinois.
Vol. 39.] Westphul v. Austin.
caused bj his general habits and theexcessivo use of alcoholic
spirits. Upon cross-examination the doctor stated further
that the disease of which the father died manifests itself
when there is no drunkenness or drinking habit at all, in
children of tender years, and in women. This dropsical con-
dition is produced by the retarded action of the heart; any
thing which retards the action of the heart would induce a
dropsical condition; this dropsical effusion may be found in
the system when there is no alcoholic poison or stimulant
whatever present. The doctor further stated:"! do not
swear that the cause of this man's death was the excessive
use of liquors or alcoholic stimulHuts." In brief ^tliis was
substantially the extent of the testimony offered by appel-
lee upon the points now under consideratiun, and it was not
strengthened by any evidence offered by the appellant upon
these points. ,
In Flynn v. Fogarty, 106 111. 263, whicli was an action of
the wife to recover for the death of her husband, under the
statute now in question, it was there held that to entitle the
plaintiff to recover it must be shown by the evidence, first,
that the defendant sold or gave the intoxicating liquors
which produced the effects complained of, to the person
alleged to have btcome intoxicated thereby; second, that such
liquor caused the intoxication complained of in whole or in
part; third, that such intoxication caused his death; and
fourth, that by reason thereof thd plaintiff has been injured
in his means >of support.
It does not appear from the evidence of the appellee, with
no contravening testimony, that the liquor sold to the father
of appellee three years preceding his death, or at any other
time, was in fact or legal presumption the proximate cause
of the father's death. That cause is shown to have been a
disease of the liver, induced by the retarded action of the
heart, and not dependent upon the use of alcoholic stimulants,
either in whole or in part. After a careful examination of all
the facts and circumstances, as shown in the record before us,
which we have carefully studied, we think the evidence and
circuuistances in evidence are entirely too remote, weak ana
Skcond DisTiircr — Dkcembeb Term, IS^^O. 235
Westphal V. Austin.
inconsequeutial to connect the appellant with the sale of
intoxicating liquors to the father of appellee so as to charge
the appellant, in a legal sense, with producing the habitual
intoxication of the fatlier of appellee as charged in the dec-
laration, or which did, in fact, lead to cause the affection
of the Jiver of which the father died, or cause his death.
The evidence fails to show in any manner to what extent,
if any, the appellee was or could be injured in his means of
support by the father's death, nor does the evidence or cir-
cumstances in evidence furnish any substantial data, fact,
circumstance or legal hypothesis upon which to estimate dam-
ages to appellee, even if it be conceded that the father's death
was caused, by appellant, as alleged. Appellee at the time of
his father's death was eighteen years of age, and presumably
capable of supporting himself. Nothing appears in the evi-
dence in this record that the appellee was receiving any sujv
port from the father at the time of his death, or that he was
needful of any, aside from his own efforts. How, then, was
appellee damnified, in a legal sense, by his father's death ? It
is insisted, however, that proof of the father's death, caused
by the wrongful act of the ap])ellant, warrants the legal in-
ference of injury to the means of support to his minor
children, and consequent damages to them therefor. If this
contention was conceded for the sake of the argument, it
could not extend beyond nominal damages, and serve to shift
the burden of proof to the defense, as was licld in Flynn v.
Fogarty, supra. But that case was a suit by the wife for the
loss of her husband, and clearly distinguishable from the case
at bar; besides, it was expressly held in that case that such legal
inference can not be indulged, except in those cases whore
it is shown — first, that the defendant sold or gave intoxicating
liquor to the husband; second, that such liquors caused the
intoxication complained of; and third, that such intoxication
caused his death; neither of which two last named precedent
facts, as we have seen, were shown in the case at bar, which
we must regard as quite sufficient to answer this contention.
It is further claimed on the part of appellee that as the
actual damages in this class of cases can not be shown with
236 Appellate Courts of Illinois.
Vol. 39.] Westphal v. Austin.
certainty, it must be left to the jury to be determined by
inferences, etc. Inferences from what, it may be asked ?
Most certainly from the facts and circumstances in evidence
only, and in the case at bar tlie facts and circumstances from
which to draw the inferences are wholly wanting.
The rule is clearly stated in the case last above cited. It
is there said : " It waB highly proper to show what the
deceased himself had done in his lifetime, the character of
his business, his habits of industry and thrift, income, and all
that sort of thing, with a view of determining what he
probably would have done in the future. Since it could
not be known with certainty what he would in fact have done
or accomplished but for his death, the next best thing was to
show the aid and assistance he probably would have rendered
but for his death. Measured by what he had done or ren-
dered in his lifetime, that could only be done in the manner
before indicated," etc.
The evidence in the record before us discloses the age of
appellee at the time of his fathers death, but whether ho
was a member of his father's family, in whole or in part
supported by the father, or what aid or assistance, if any,
he had received or was then receiving from liis father, or
what, if any, means the father possessed with which to
support or aid the appellee, does not appear.
If we are correct in the premises stated, clearly there can
be no recovery in the case at bar. Manifestly the evidence is
not suflScient to support the verdict, and the Circuit Court
erred in refusing a new trial and rendering judgment on
the verdict. The judgment of the Circuit Court is therefore
reversed, and the cause is remanded for further proceedings
not inconsistent with the views herein above expressed.
Meveraed and remanded.
Second District — December Term, 1890. 237.
Burnecfc v. Snapp.
L Burnett f g ^,
V.
H. Snapp.
Practice— Bill of Exceptions— Must Show Motion for New Trial.
A recital in the judgment, by the clerk, that a motion was made for a
new trial, is a nullity. The fact that such motion was made must appear
in the bill of exceptions signed by the judge.
«
[Opinion filed Ju^e 11, 1891.]
In error to the Circuit Court of Will County; the Hon.
DoRRANCE DiBELL, Judge, presidinfif.
i
Messrs. Haley & O'Donnell, for plaintiff in eiTor.
Mr. H. M. Snapp, for defendant in error.
C. B. Smith, P. J. This was a suit begun before a justice
of the peace and brought to the Circuit Court by appeal.
The suit was to recover for a month's rent for a certain iiouse
after appellant had abandoned it and moved away. Appellee
had judgment below, and appellant now brings the record
liere on appeal. The bill of exceptions show no motion for a
new trial nor any exception to the judgment The recital in
the judgment by the clerk that a motion was made for a new
trial amounts to nothing. It must be in the bill of exceptions
and signed by the judge. There is, therefore, nothing for us
to review. Martin v. Foulk, 114 111. 206; Wolfe v. Camj -
bell, 23 111. App. 483.
The judgment will be affirmed.
Judgment affirmed.
238 Appellate Courts of Illinois.
Vol. 89. 1 Smith v. The People.
39 238
'"^ ^ Asa B. Smith
V.
The People of the State of Illinois ex eel.
Drainage — Removal of CommUsioner from Office — Quo Warranto.
Drainage commissioners are public, officers who may, in proper cases, be
ousted by quo warranto. The Legislature has the power to alter or repeal
the drainage law and may provide for the removal of one set of officers anc
for the appointment of another set in a different mode.
[Opinion filed June 11, 1891.]
In ekeor to the Circuit Court of Lee County; the Hon.
William Brown, Judge, presiding.
Mr. F. E. Andrews, for plaintiflf in error.
Messrs. Sherwood Dixon and S. H. Bethka, for defendants
in error.
C. B. Smith, P. J. Tin's was an information in the nature of
a quo \oarranto^ brought for the purpose of ousting appellant
from tlie office of drainage commissioner of Nelson Drainage
District No. 1. On the hearing in the Circuit Court a judg-
ment of ouster was rendered against appellant and the case is
brought here on a writ of error.
The drainaga district in question was organized by pro-
ceedings had before a justice of the peace under the act of
May 29, 1879. Appellant was duly appointed by a justice of
the peace October 8, 1883, and took and subscribed the
required oath and entered upon the discharge of the duties of
his office. The act of 1879 was amended in 1885. The 62d
section of the amended act required the County Conrt to
appoint the drainage commissioners on the first Monday in
September, 1885, for any district before that time organized.
By virtue of this power and authority vested in the County
Court, the court did appoint three commissioners for theNel
Second District— May Term, 1890. 239
Smith V. The People.
son Drainage District to take the place of Asa B. Smith and
his associate, who had been appointed by the justice. These
new commissioners were qualified and demanded the office of
appellant, who declined to surrender the office, and thereupon
this proceeding was begun against him. On a hearing the
Circuit Court gave a judgment of ouster and appellant now
prosecutes this writ of error. His first contention is that the
ofihce of drainage commissioner is a mere private office or
employment in which the State or public has no concern, and
that quo wan^anio will not lie. It is also insisted that the
charter to a drainage district is in the nature of a private
grant, and tliat the Legislature can not repeal or alter it
since it becomes a contract between the district and State.
Much time is given by the learned counsel to the discussion uf
that question. We can not concur in either position. Drain-
age districts under the statute are creations for public as well.
as purely private purposes. It is a quasi public corporation
and its commissioners are public officers with no private riglits
involved and may be supei^seded or removed from office.
Com. of Havana Tp. Drainage District v. Kelsey, 120 111. 482.
People v. Brown, 83 111. 95. These corporations are created
by the statutes for sanitary as well as purely drainage pur-
poses, and their creation, management and control are provided
for by the statutes. This being so it follows that the Legis-
lature has the power to at any time alter the law, amend or
repeal it, and may provide for the removal of one set of
officers, and for the appointment of others in a different mode.
The 62d section of the act of 1885 authorized the County
Court to appoint new commissioners in all old districts on a
certain day. That was done in this case and the effect of the
new appointment was to vacate the office held by appellant.
Smith. Peterson v. Lawrence, 20 111. App. 637.
Finding no error in this record the judgment is affirmed.
Judgment affirmed.
240 Appellate Courts of Illinois.
Vol. 89.] County of McHenry v. Town o' Dorr.
The County of McHenby
V.
The Town of Dorr.
Municipal Corpoi'athns — Suii by County to Recover from Township for
Support of Pauper — Residence — Money in Possession qf»
1. The menfal capacity of a paup>er and insane person after being
ac1jud}^ed insane, to choose a residence, can be shown in the aUsence of a
readjudication.
2. - In an action by a county to recover from a township for the care and
support of a pauper during certain periods, this court holds that notwith-
standing said person had been adjudged in^^anOt he hud, when subse-
quently discharged, the legal Ciipacily to choose his residence, and having
chosen one outside the defendant, it i» not liable for his keeping from the
time he was taken charge of by the county the second time.
[Opinion filed May 21, 1891.]
Appeal from the Circuit Court of McIIenry County; the
Hon. Charles Kkllum, Judge, presiding.
Messrs. A. B. Coon and A. W. Young, for appellant
Counsel for appellee insist that the only effect of the verdict
of August 15, 1882, finding Perry Spooner insane,wa8 to change
the presumption from one of sanity to one of insanity, and
that the question might be rebutted after that by any evidence,
and cite Lilly v.Waggoner, 27 111. 395, to sustain their position;
but which case, when considered, does nothing of the kind; it
merely finds that a conveyence executed several years hefore
the inquisition of insanity was valid; and they only say, obiter
diday '*But after inquest found the presumption is reversed
until it is rebutted by evidence that he has become sane."
They do not say what evidence would be admissible, nor was
that question before the court; they certainly do not hold that
the question can be inquired into collaterally. Menkins v.
Lightner, 18 111. 282, is also a case wherein a contract made
before inquisition is passed upon, and the authorities there cited
refer to contracts made after insanity is established hy proof ^
Second District — December Term, 1S90. 241
County of McHenry v. Town of Dorr.
not where one has been judicially determined to be ini?ane.
And so as to the case of C. W. D. R R. Co. v. Mills, 91 111.
39. And 80 also is Titcomb v. Vantyle, 84 111. 371, where
the condition of the person a year before the inquisition of
insanity was in question, and determirjed by oral evidence-
Tliere is nothing in that as to his condition after judicially
declared insane, and no direct holding or opinion of the court
as to the presumption after inquisition, what is said and quoted
being simply ol^'ter dicta.
The case of Lanijjdon v. People, in 24 N. E. 874, is not a
parallel case, as counsel for appellee seem to insist. In that case
Langdon liad never had an inquisition of insanity or been judi-
cially found insane. He had simply at one time been confined
in an insane asylum and transferred from tlie penitentiary by
the warden's direction. The court say, on page 879 : " There-
fore, in considering the views hereinafter expressed, it must
be borne in mind that the bare fact of the defendant's transfer
from the penitentiary to the insane hospital in 1878 or 1879
is the only evidence of the unsoundness of his mind when he
was so transferred." And again on page 880 : " In the present
case there is no proof whatever that the defendant was ad-
judged to be insane in accordance with the provisions of the
act in relation to the commitment and detention of lunatics.
Rev. St. C. 85." Again : "The removal is not based upon insan-
ity that is 'determined by an inquest or legal adjudication, but
because the attending physician or warden advises it."
The Indiana case cited from, 22 N. E. 110, only reaffirms the
doctrine previously laid down by that court in Redden v.
Baker. The court say (p. Ill): "In the case of Redden v.
Baker, 86 Ind. 191, it was held that where a person had once
been adjudged insane by a proper tribunal, that the presump-
tion of insanity continued until such person had been declared
sane under the proceedings provided for by our statute, and
that, while the record of insanity stood, such person was in-
competent to enter into any contract. Such is undoubtedly
the rule where there are no counter-presumptions. * * *
But in cases like this, involving the legality of a marriage,
every presumption is in favor of such marriage." And they
ToL. XXXIX 16
242 Appellate Courts of Illinois.
Vol. 39.] County of McHenry v. Town of Dore.
say that " it can not be tried like ordinary questions of fact
which are independent of this presumption." Evidently
making this apparent modification of the rule in Redden v.
Baker, on the ground of public policy, which is over and
above all cases and the foundation of all rules and laws.
In a criminal case the rule is different because the law makes
insanity a defense which can be inquired into in the same pro-
ceedings, but in a civil case the presumption is conclusive in
a collateral proceeding such as this.
As before stated, the case of Ecdden et al. v. Baker, 86
Ind. 191, is a judicial construction of a statute almost identical
with our own — Par. 37, Chap. 86 — in providing for the trial
of a person who has been declared insane and whom it is
alleged lias been restored to reason, as they put it — has become
of sound mind again; and the principle there enunciated thaf
the sanity, soundness of mind, or restoration to reason can
only be established and shown in the manner pointed out
by the statute, is exactly what we contend. Our statute
points out a way of determining this fact, even if a person
has no property or conservator — Par. 20, Chap. 85 — and we
insist that until Perry Spooner was judicially declared
restored to reason by one of these processes, that the pre-
sumption of insanity was conclusive and could not be inquired
into or attacked collaterally.
Messrs. C. P. Barnes and Joslyn & Casey, for appellee.
"As this court said in Wood v. Price, 46 111. 435, so must
we now repeat in a case tried by the court without a jury, in
which the court was required to weigh all the testimony — as
much force and effect should be given to the finding of the
court as to the finding of a jury. The circuit judge is in a
more favorable position to weigh the evidence than we can
be, and his finding not being against the preponderance of the
evidence, it must stand." Thomas v. Rutledge etal., 67 111.
213; see also Wood et al. v. Price, 46 111. 435; Claybaugh v.
Hennessy, 21 111. App. 124; Dempsey v. Whiteside, 31 111.
App. 32; Field v. The Chicago & Rock Island Railroad Co.,
71 111. 458; Travers et al. v. Wormer et al., 13 111. App. 39.
Second District — December Term, 1890. 243
County of McHenry v. Town of Dorr.
''The. court saw and heard the witnesses, and very great
deference should be paid to his judgment in relation to a
question upon which the evidence is sharply conflicting."
People V. Brooks, 22 111. App. 594. See also Claybaugh v.
Hennessy, 21 111. App. 124.
"The legal presumption is, that all persons of mature ago
are of sane memory, but after inquest found, the presump*
tion is reversed until it is rebutted by evidence- that he has
become sane." Lilly v. Waggoner, 27 111. 395; see also
Menkins v. Lightne^ 18 111. 282; Chicago W. D. E. Co. v.
Mills, 91 111. 39; Titcomb v. Vantyle, 84 111. 371.
" When insanity of a permanent type is shown to have
existed prior to the commission of an act, it will be inferred
to have continued, unless the contrary be proved, down to the
time of the act. It is otherwise, however, when the proof is
of temporary or spasmodic mania, or of delirium tremens."
Wharton's Criminal Law, 9th Edition, Vol. 1, Sec. 63, p. 89.
" As a general rule, where insanity is proven as existing at
a particular period, it will be presumed to continue until di^
proved. 1 Greenl., Ev., Sec. 42; 2 Bish., Crim. Proc, Seu
674; 1 Wharton' s Crim. Law, Sec. 63. This rule, however,
is subject to several important qualifications. One of these
qualiti cations is that the insanity shown to have existed prior
to the commission of the act must be of a pernianent type, or
of a continuing nature, or possessed of the characteristics of
an habitual or confirmed disorder of tlie mind, or its peculiar-
ities must have been exhibited for a long series of years. It
is not snflBcient that there be proof of a temporary or spas-
modic mania. Hix v. Whittemore, 4 Mete. 545; State v.
Lowe, 93 Mo. 547; 5 S. W Rep. 889; People v. Francis, 38
Cal. 183." Langdon v. The People, 24 K E. Eep. 874; see,
also, Physio-Medical College v. Wilkinson et al., Supreme
Court of Indiana, 9 N. E. 167.
" If he was sufficiently recovered to be discharged, whether
on parol oi^ otherwise, it would seem that the presumption of
his insanity, arising from his being in the asylum, ought to
cease." Langdon v. The People, &uprcu
244 Appellate Courts of Illinois.
Vol. 39.] County of McHenry v. Town of Dorr.
" Inquisitions of lunacy are necessarily ex parte^ so far as
concerns the person claimed to be a lunatic; since, on the
assumption by which alone they have validity, he is a lunatic,
and, if a lunatic, he is not capable of putting in a valid
appearance. Unless upon the hypothesis that such proceed-
ings are in rem they can not be held admissible against
strangers; and, at the best, make out only a prima facie
case." Whart, Crim. Ev., Sec. 599; also, Whart. on Ev., Sec.
599.
" It matters little whether the propositions the court re-
fused contain correct expressions of the law or not It is
sufiicient if it clearly appears the propositions which the court
held to be correct state every possible principle of law^ neces-
sary to be considered in the decision of the case. Other
propositions were wholly unnecessary, and the court "was not
bound to hold them to be the law." The Germania Fire
Insurance Company v. Hick, 125 111. 361.
" The term ' residence,' mentioned in this act, shall be
taken and considered to mean the actual residence of the party,
of the place where he was employed, or, in case he was in
no employment, then it shall be considered and held to be the
place where he made it his liome." Starr & C. 111. State.,
Chap. 107, Sec. 17, Subject, " Paupers.'^
Lacey, J. The appellant seeks to recover of appellee for the
care and support of the pauper, Perry Spooner, during periods
between August 15, 1882, and September 6, 1887, charging
that such care and support was furnished at the solicitation
and request of the appellee.
It appears that according to the statute, the poor of
McHenry County are required to be supported by the various .
towns in the county in which they reside six months imme-
diately preceding the time they become a county charge.
Perry Spooner, in accordance with the provisions of the
statute, was on the 15th of August, 1882, tried in the County
Court before a jury, and found to be insane and a count}'
charge. The county from that time supported him as a
county charge until about the 9th of October, 1882, when
without any other proceedings before a jury to declare liim
Second District — December Term, 1890, 245
County of McHenry v. Town of Dorr.
restored to reason, he was discharged as sane, and was
allowed to go at large and support himself until July, 1884,
when he was again taken into custody by the county as an
insane pauper and supported up to the time this suit was com- '
nienced. During this time Spooner made his home with one
E. JP. Grover, in the town of Greenwood in said county, being
employed as a farm hand, at wages of $18 and $20 per month.
The case was tried by the court without a jury, resulting
in a finding by the court for the appellee, from which and
the judgment thereon rendered, this appeal is prosecuted.
The right of the appellant to recover in this case hinge^s on
the fact as to whether or not Perry Spooner was a resident
of the town of Dorr for six months prior to July, 1884,
the time he was taken into the custody of the county the second
time; for as to the short time he was kept the lirst time by
the county, we think the court below was fully justified in
finding that the $57 possessed by Spooner at the time he was
found to be insane and a county charge, and which was taken
into custody by the county, and held and returned to him by
the sherifiE when he was discharged in October, 1882, was
amply sufiicient, if it had been retained, to pay for his keeping
up to that time. The county, having failed to apply it, can
not recover the amount from appellee. If Perry Spooner
was a resident of the town of Greenwood from October, 1882,
to July, 1884, then, as a consequence, he was» not a resident
of appellee during that time.
As a question of fact, independent of any question of law,
we think there was ample evidence from which the court
might find that Spooner had sufficient mental capacity to
choose a residence, and that in fact he did choose his
residence in the town of Greenwood soon after he was dis-
charged in October, 18S2, and retained it till he was again
taken into custody in July, 1884.
He had all tlie appearances of a sane man and was able to
labor and earn his own living as well as any other farm hand;
he was capable of handling a team and doing any ordinary
work. But it is insisted that the judicial determination of
Perry Spooner's insanity in August, 1882, was, until he by a
246 Appellate Courts op Illinois.
Vol. 39] County of McHenry v. Town of Dorr.
like decision should be declared sane, conclusive evidence of
his insanity and that in consequence the question was not open
to controversy. His status, therefore, being fixed, he was in-
capable of choosing a residence in the town of Greenwood.
The court below was, therefore, asked to hold the following
proposition as law, which it refused to do, viz.: " That the ver-
dict of the jury in insanity proceedings in this State, regularly
had, is conclusive as to the question of insanity and can not
be rebutted collaterally, nor be inquired into until such a per-
son has been declared restored to reason, either by trial by
jury, judgment on writ of habeas corpus^ or discharge by the
superintendent or keeper of an insane asylum as restored."
We are unable to agree with counsel for appellant' on the
proposition of law. We think, at least, the mental capacity of
the pauper and insane person after being adjudged insane to
choose a residence, can be shown in the absence of any
readjudication.
The mental capacity of such person to commit a crime may
also be shown, and we think in this State generally. The
appellant relies largely on the case of Redden v. Baker, 86
Ind. 191, to sustain him in his contention. We have examined
that case carefully and do not think that it can be regarded as
authority in this State. That decision was rendered on a
statute very diCFerent from ours. . In that case Martha Collier
had been declared insane under a statutory proceeding in the
State of Indiana, and a guardian appointed, who was after-
ward discharged; but she had never been again tried as to
her soundness of mind and restored to reason in the "same
manner as to the allegation of the unsoundness of mind*" as
the statute required. After she had been declared of unsound
mind, and aftei* the discharge of the guardian and after she
had married a man by the name of White, she* sold and con-
veyed for a valuable consideration certain real estate to Red-
den. The action was brought to set aside the conveyance,
which the Supreme Court of that State held should be done.
The decision was based on a statute of that State. The court
says: '' The question is a new one and must probably be deter-
mined as a question of statutory construction rather than
purely by principle or authority alone."
Second District — December Term, 1890. 247
County of McHehry v. Town of Dorr.
Tlie statute on the subject required the forming of an issno
and trial by jury, and in case of finding the person tried
of unsound mind, tlie appointment of a guardian, who should
liave the custody of the person and management of the estate,
and the guardianship should terminate upon restoration to
reason or the death of the ward. Sec. 10 of the statute also
provided that "whenever it is alleged that such person of
unsound mind has become of sound mind again, the fact
may be tried as to the allegations of the unsoundness of mind."
Sec. 11: "Every contract, sale or conveyance of any person,
while a person of unsound mind, shall be void."
In our statute there is no such provision as to restoration as
in the Indiana statute; nor is there any question here as to
the property rights of Perry Spooner. The only question
here is as to his mental capacity to choose his own residence
after being discharged by the county authorities as of sound
mind. The law favors the right to choose a residence, for it
is always desirable that every person shall have a residence
and a fixed place of abode. It is a matter that concerns the
public in the individual's relations to society, in a similar way
that his conduct and behavior affect it. It might as well be
contended that an individual under like circumstances, how-
ever sane he might be in fact, could not commit crime until
he was tried and again found sane. We understand that the
Supreme Court has passed on this question substantially.
It is said that "the legal presumption is that all persons of
mature age are of sa.ne memory, but after inquest found the
■|)resumption is reversed until it is rebutted by evidence that
he has become sane."*' See Lilly v. Waggoner, 27 III. 395;
Menkins v. Lightner, 18 111. 282; C. M. D.li. Co. v. Mills, 91
111. 39; Titcomb v. Vantyle, 84 111. 371; McCormick et al. v.
Littler, 85 111. 62; Langdon v. The People, 24 N. E. E. 874.
In the case above cited, in 85 111., it was lield that a contract
for necessaries, even if a person were under a conservator,
under the statute, where all his contracts are declared void,
was binding and not within the statute. Is a residence not
necessary when a sup]ioscd sane person, formerly a lunatic,
like Spooner, has been discharged by the county and turned
248
Appellate Courts of Illinois.
Vol. 39.1
Martin v. Jamison.
out to shift for himself ? In Langdon v. People, suprayit was
said by the court : " If he was sufficieutiv recovered to be
discharged on parol or otherwise, it would seem that the
presumption of his insanity arising from his living in the
asylum ought to cease."
We are therefore of the opinion, that, notwithstanding that
Spooner had been adjudged insane, he yet, when discharged,
had the legal capacity to select his residence, and Iwiving
chosen one outside the town of Dorr, the appellee is not liable
for his keeping from the time he was taken charge of by the
county the second time. The judgment of the court below is
therefore affirmed. '
Judgment affirmed.
99 848
47 IflQ
B. H. Martin et al.
V.
George M. Jamison et al.
Itijwiefiotis — Schools— Imjproptr Payment qf PuhUc Money — JurisdiC'
Hon— Practice,
1. A bill averring that a majority of the cTirectorB of a pchool district,
defendants, intended by fraud and indirection to pny out the public money,
to that district belonging, throusrh au incompetent person named, who was
by them emploj'ed as a teacher, to an assistant teacher, in face the princi-
pal of the school, and who, at the time of such alleged emplo^Mucut, held
no certificate as a teacher, ni.ikes a c ise for equitable jurisdiction.
2. In such case, equity will restrain the piyment of any of such public
moneys for such unlawful, and for any fraudulent purpose, to any one, by
the board of directors of such district.
3. Equity once having obtained jurisdiction, will retain it until com-
plete justice is done, even though adequate relief can be reached only by a
personal judgment.
4. The dissolution of a preliminary injunction can not affect the ordi-
nary progress of a suit in equity, it being collateral to the main object of
the bill.
5. In the case presented, this court holds that the trial court err^d in
dismissing complainant's original and amended bills for want of equity;
likewise in sustaining defendant's demurrer to said amended bill; likewue
Second District — December Term, 1890. 249
MartiD v. Jamison.
as to the assessmeDt of damagres on the dissolution of comphiinant^* prelim-
inary injunction; and rever;ies and remands the decree with directions.
[Opinion filed May 21, 1891.]
Appeal from the Circuit Conrt of Henderson County; tlie
Hon. John C. Bagby, Judge, presiding.
This suit is brought by appellants against appellees. The
complainants in the suit, some forty and more in number, aver
that they were residents of and taxpayers in school district
No. 9, Township No. 10 N., R4W. 3d P. M., in Henderson
County. Within the district is maintained a graded school
divided into thre0 departments viz.: primary, intermediate
and high, employing a teacher in each department or ^rade.
The teacher in tlie higliest department acts as teacher and
principal, having charge and direction of the other departments
of the school. For some time prior to 1886 one James N.
Derr had been employed as a teacher in and principal of such
school, at a salary of $75 per month. In the winter or spring
of 1886 a large portion of taxpayers in said district and patrons
of the school became dissatisfied with Derr as such teacher
and principal and desired a change. After the election in the
spring of 1886 a majority of the board of directors sympa-
thized with Derr, and disregarding the known wishes of those
opposed to Derr, a majority of the board, George M. Jamison
and Mary E. Porter, defendants, contracted with Derr in due
form of law to continue as such teacher and principal of such
school for the then ensuing month of September, 1SS6, at a
salary then fixed at the sum of $75 per month.
In July, 1886, charges affecting the morality and integrity
of Derr were made in writing and filed with the superintend-
ent of schools of Henderson County, and upon filin^j thereof a
time was designated for the hearing thereon, which was July
21, 1886, of which presentation and time of hearing both
the board of directors and said Derr had notice. Desirous
of avoiding investigation upon the charges made, Derr,
acting in bad faith and conspiring with a majority of the
boai'd of directors, viz., George M. Jamison and Mary E. Por-
250 Appellate Courts of Illinois.
Voi^ 39.] Murtin v. Jamison.
ter, defendants, on the 20th day of July, 1886, caused and
obtained an injunction to be issued from the Circuit Court of
Henderson County, on a bill being filed in such court by Derr,
against the county superintendent of schools of that county,
restraining and enjoining such county superintendent from a
liearing upon the charge so made, and tiled against Derr,
as above stated. In procuring the aforementioned injunction
Derr, as complainant therein, was requested to and did execute
and tile an injunction bond in penalty of $300, conditioned as
by law required, and George M. Jamison, one of such school
board, defendant, became his surety thereon. At the August
term of the Circuit Court for Henderson County, on motion
and hearing thereon, the aforementioned injunction was dis-
solved and the bill against such county superintendent of
schools was dismissed, and damages were assessed upon suggcs-
tionson dissohition of the injunction, in the sum of 8147.91, for
which George M. Jamison became liable as surety on the
injunction bond for Derr, as before stated.
It is further averred in the bill, that at the time of the com-
mencement of such injunction suit and the rendition of the
decree for damages, Derr was wholly and to tall j insolvent,
and had no property or effects out of which the money in
such decree directed paid could be made, and that the costs
and exjienses of such suit and proceedings were borne and
sustained by the supporters of Derr.
It is further averred that the tirst terra for the school
year of 1886 and 1887, for which the said Derr had been
engaged as teacher and principal by such majority board
of directors as before mentioned, commenced on Monday,
September 6, 1886, at which time and term tlie said Derr,'
under and pursuant to his said contract, began his services
as teacher and principal of such school; that after the said
Derr had taught the school one day, and on the evening of
September 6, 1886, at a meeting of such district school board,
at which meeting the said George M. Jamison acted as
president, and the said Mary E. Porter as clerk, and they
being the only members of the board present, and without
claim or cause, the salary of the said Derr was voted to be
Second District — December Term, 1890. 251
Martin y. Jamison.
increased from $75 to $125 per month; that on the 15th
day of September, 1888, the superintendent of schools in
and for Henderson County, after the dissohition of the in-
junction, and upon hearing such charges aforementioned,
revoked the certificate of the said Derr as a teacher .in the
schools of that county, due notice whereof was given the
school board and the said Derr; that thereupon such major-
ity of the school board issued an order on the treasurer of
said towuship to said Derr for $34.10, which was in excess
of the amount due for the services rendered, even at the rate
of $125 per month; that against the protest of the complain-
ants, and with the full knowledge of all the facts, one J. E.
Barnes, one of the defendants, then acting as township treas-
urer of said township No. 10, paid euch order and charged
the same to school district No. 9; that at the meeting of the
school board on the 13th of September before referred to,
George M. Jamison and Mary E. Porter voted to and pre-
tended to contract with one Fred Jamison, a young son of
George M. Jamison, to act as teacher in and the principal
of such school at the compensation of $125 per month; that
the said teacher so employed had but little education, obtained
in common schools; had never taught school prior thereto;
had no adaptation by age, education or experience to qualify
him therefor; could only obtain a certificate of qualification
as a teacher of the second grade, and his services as such
teacher were of small value; all of which facts were charged
to have been well known by defendants George M. Jamison
and Mary E. Porter at the time of such pretended employ-
ment. It is further charged that since the pretended em-
ployment of Fred Jamison as teacher the said Derr has
been attending the school, and charged on information to
liave been aiding and assisting in the conduct and manage-
ment thereof. It is further charged that no such wages as
$125 per month has ever been paid in that county for teach-
ers, no matter how high their qualifications or extensive
their experience, which defendants well knew, and that said
majority of the board of directors well knew that entirely
competent teachers could at the time have been obtained
252 Appellate Courts of Illinois.
Vol. i.9.] Martin v. Jamison.
for $70 per month, and that such majority members of tlie
said school board in so agreeing and contracting with
both Derr and Fred Jamison to pay $125 per month were
guilty of wilful misconduct, malfeasance and partiality in
their office as dij'ectors, and it was known by all parties to
such contracts to have been so intended and executed, and
that it was so done and made with intent either to be given
as a gratuity to the said Jamison and Derr, or one of them,
or for the like wrongful purpose of furnishing Derr with
money with which to discharge debts and obligations of his
incurred in the expense and cost of the litigation in tlie said
injunction suit, and pay the damages awarded against him on
the dissolution of the injunction therein, and relievo the said
George M. Jamison fr(Jm his liability as surety on the said
injunction bond, and for the purpose of defrauding and pun-
ishing of the taxpayers of the said district, and that the
pretended employment at $125 per month of both Derr and
Fred Jamison by the majority of the said board was a sham
and pretense, and fraudulent and wilful misconduct, malfeas-
ance and partiality in office, etc. It is further char<red in
said bill that the said George M. Jamison and Mary E. Porter,
majority of such board, intend to continue to retain and
employ the said Fred Jamison as such pretended teacher and
principal of such school at the rate of $125 per month, and
that it is the intent of such majority of said school board and
the said Fred Jamison to continue to employ the said Derr
as his substitute and assistant, and that they will so do and
perform, unless restrained, and will also issue orders for the
payment of such persons so pretended to be employed by
them, for the benefit of the said Derr and the said George M.
Jamison, as before set forth, and such orders will be i)aid by
the treasurer of such townships, one of the defendants here-
to, and a fraud will be perpetrated upon the taxpayers of
such district, unless restrained by the order of the court.
And it is further charged that the said Fred Jamison is a
mere tool of his father, the said George M. Jamison, and
Mary E. Porter, and that he is being used simply for the
purpose of perpetrating upon the inhabitants, patrons and
Second District — DecembiIr Term, 1890. 253
Martin v. Jamison.
taxpayers of said school district great wrens: and fraud, and
that if not prevented from such acts and duinorg by injunc-
tion, that in addition to what has already wrongfully been paid
it will result in still further and greater misappropriation of the
funds and moneys of such school district, for the wilful and
corrupt purposes, and to subserve and promote the ends and
malice of the said George M. Jamison, Porter and Derr.
The bill prays for an injunction restraining the board of
directors of that school district from giving orders or paying
to or further misappropriating the moneys of the said
district, or paying same to Fred Jamison or Derr, and that
the contract between the board of directors and the said
Jamison be set aside, and the general prayer for relief.
The bill was sworn to in due form, upon which bill an
injunction issued as prayed on bond given in the penal sum
of ?300. At the August term, 1889, of said Circuit Court,
defendants answered the bill denying each and every allega-
tion thereof the injunction on motion of defendants being
dissolved, and the bill was dismissed as to a part of the com-
plainants, and thereupon complainants by leave of court tiled
a supplemental bill, in which was averred by way of su[>-
plement that after the filing of the original bill the said
board of directors issued to said Fred Jamison orders on the
school fund of said township for the sum of $375, being the
amount claimed due for services as such teacher and principal
under such pretended and fraudulent contract, at the rate of
$125 per montii, and praying that said George AT. and Fred
Jamison and Mary E. Porter or some one of them, the facts
considered, be required to repay to the school fund the said
sum of $375 so improperly paid to them, and for general
relief, etc.
To which supplemental bill a demurrer was sustained, cind
at the March term, 1890, a final decree was entered without
hearing on the issue joined in said cause dismissing the orig-
inal and supplemental bills, for the reason assigned in such
decree; that the said contract of hiring and the payment of
wages and rendering of the services of the said Fred Jami-
son, had long prior thereto been completed and performed
254 Appellate Courts of Illinois.
Vol. 89.] Mjiytin v. Jamison.
and the wages paid, wherefore the Circuit Court found there
was nothing left in the original bill for tlie court to act upon,
and that it would be useless for the court to grant the relief
prayed for, if the complainants by the people were entitled
thereto, and that the allegations of the bill would not justify
the relief prayed for, and the bill ought to be and was accord-
ingly dismissed for want of equity, and that the complainants
pay the costs, etc. Upon suggestion of damages being filed
on the dissolution of the injunction the Circuit Court upon
hearing evidence as to such damages only, awarded defendants
the sum of $263.65, as follows, viz.:
To .John C. Pepper, legal services and ex-
penses $125.00
To R. J. Grier, legal services and expenses. . 98.46
" Fred Jamison, expenses to R. Island 7.35
" George M. Jamison, expenses to R. Island,
wit. fees on affts., swearing thereto and
telegraphing • 32.85
$263.65
which was decreed to be paid as such damages for wrongfully
suing out said injunction by complainants in thirty days; in
default thereof defendants to have execution therefor, etc.
To which aforesaid order, findings and decree the complainants
excepted and prosecute an appeal to this court.
Messrs. KiEKPATRicK & ALEXANDER, for appellants.
Messrs. Griee & Stewart and IPepper & Scott, for appel-
lees.
Upton, J. The errors complained of in the Circuit Court
are :
Ist. In dismissing the original and supplemental bills.
2d. The assessment of damages in defendant's favor on
dissolution of the injunction and without a hearing of the case
on its merits.
3d. That the assessment of damages were improper and
excessive.
First. We are of the opinion that the original and amended
bills as filed made a case for ec^uitable jurisdiction, at the least
Second District — December Term, 1890. 255
Martin v. Jitmison.
b}' way of injunction. It was averred in tlie original bill that
a majority of the directors of scliool district No. 9, wlio were
made parties defendants to the bill, intended by fraud and
indirection to pay out the public money to that district belong-
ing through one Fred Jamison, who was by them employed, to
one James N. Derr, as an assistant teacher and in fact prin-
cipal of that school, and who at the time of such alleged
employment held no certificate as a teacher. In such case if
no injunction had been sought equity will grant relief. Board
of Education et a1. v. Arnold, 112 111. 12.
Upon the same principle equity would restrain the payment
of any of such public moneys for such unlawful and for any
fraudulent purpose, to any one by the board of directors of
such district.
In Jackson v. Norris, 72 111. 364, it was held that a court of
equity will entertain a bill on behalf of taxpayers for relief
against an act of misappropriation of public, corporate funds
after it has been committed, as well as to enjoin the commis-
sion of such act, when meditated.
It was further held in that case, that courts of chancery
will interfere to prevent municipal councils from abusing
powers relating to property and funds intrusted to them, to be
exercised in conformity with law, for the benefit of the
incorporated place or its inhabitants, and will relieve against
fraudulent disposition of its property and the authorities
cited in support of the opinion, which would seem conclusive
upon that point. Hence, the Circuit Court erred in dismiss-
ing the original and amended bills for want of equity. The
court also erred in sustaining the demurrer to complainant's
amended bill.
The fact that the money had been paid to Fred Jamison
under the circumstances in the answer and amended bill set
out, in no manner prevented the relief sought by complain-
ants. Neither Jamison nor the school directors could defeat
the injunction or complainants' right to relief by tlieir own
wrongful act in paying the money, if the allegations of the
bill were sustained upon hearing the case upon its merits.
Board of Education v. Arnold, supra^ and cases cited.
256 Appellate Courts of Illinois.
Vol. 39.] Martin v. Jamison.
It 18 a familiar principle that equity once having obtained
jurisdiction will retain it nntil complete justice is done, even
though adequate relief can be reached only by a personal judg-
ment. Hurd V. Ascherman, 117 111. 501; Pool v. Docker,
92 111. 501.
Second. We think the Circuit Court also erred in dismiss-
ing the original bill, on the disposition of the motion to dissolve
the injunction, and refusing to hear evidence of the complain-
ants as offered upon the matters set up therein. The cause
was at issue upon its merits, and no demurrer having been
interposed to the original bill, complainants had a right to be
heard upon their issues. The injunction therein prayed was
not the only relief sought, or prayed for, and the suit still
remained in the Circuit Court for hearing upon the issues
joined, after the dissolution of the injunction, as before. It
is clear that the dissolution of a preliminary injunction can
not affect the ordinary progress of a suit in equity, it being
collateral to the main object of the bill. It by no means
follows from the dissolution of the preliminary injunction
that the complainants are not entitled to other relief sought,
and that can only be determined by a hearing upon the merits,
which may result in granting the relief sought, with a perpet-
ual injunction also, as frequently occurs in practice and is
fully warranted and established by precedent and authority
too familiar to require citation or further comment. To dis-
miss a bill in such case, without a hearing on the merits, is to
cast the complainant in damages for wrong doing in suing
out an injunction, for the doing of which he might on the
hearing clearly establish his right. Complainants had an
undoubted right, we think, to such hearing, for if they estab-
lished the averments and charges of the bill, as we have
attempted to show, they were entitled to relief, and the
injunction was not improperly sued oirt; and if that be
so, it is apparent that they should not be cast in damages
therefor, upon its dissolution. In such case there could be no
breach of the condition of the injunction bond. In the case
at bar the injunction was dissolved upon coming in of defend-
ants' answer denying the allegations of the bill, and the
Second District — December Term, 1890. 257
Murtio V. Jamison.
bill thereupon was dismissed, and the claimed damages of
$263.65 assessed for the wrongful suing ont of the injunction,
and a hearing of evidence upon the merits was denied. This
we think was error manifestly. Woerishoflfer et al. v. S. E.
& W. Ey. Co., 25 111.. App. 84; Fisher v. Tribby, 5 111. App.
336; Wilson v. Weber, 3 111. App. 125; Terry et al. v. Trus-
tees of H. P. School, 72 111. 479; Blair v. Eeading, 99 111. 600.
The correct rule as we think was stated by Judge
Pleasants in Gillett v. Booth, 6 111. App. 429, viz.: *' When an
injunction is the only relief sought and it is dissolved on
motion upon the lill alo7ie, which operates as a demurrer for
want of equity and admits all the facts alleged, the order of
dissolution is a final disposition of the case and the formal dis-
missal of the bill may ^regularly follow, but not otfiei^ioise;^^
which is supported in this State by the following cases: Titus
V. Mabee, 25 111. 232; Hummert v. Schwab, 64 111. 142;
Weaver v. Poyer, 70 III. 567.
Third. It follows, therefore, that the assessment of damages
on the dissolution of the preliminary injunction in the Circuit
Court was erroneous for the reasons above set forth, and for
the further reason that the evidence fails to show that the
attorneys' fees allowed were the usual and customary fees, or
that the attorneys had not an agreement for a less amount, or
that appellees had paid or become obligated to pay therefor
the amount allowed. In no case could appellees be allowed
for their own time or expenses in going to the court or attend-
ance therein. The decree of the Circuit Court must there-
fore be reversed and the cause remanded with directions to set
aside the order sustaining the demurrer to the complainants'
supplemental bill and decree, dismissing the original bill and
proceed to a hearing of the cause on the original and supple-
mental bills on the issues joined and to be joined thereon and
in conformity with the views herein above stated.
Reversed and remanded with directions.
Meveraed and remanded with directions.
Vol. XXXIX 17
258 Appellate Courts of Illinois.
Vol. 89 .] Brecbon v. Duis.
Joseph Beechon et al.
V.
Etzard Duis..
Praetiee— Appeal from Chancery Decree — Absence of Certificate of
Evidence,
Upon appeal from a decree in chancery, where there is no certificate of
evidence in the record, and the decree does not recite the evidence nor the
fin<]ings of the court below, the case must be reversed without regard
to the merits,
[Opinion filed June 17, 1891.]
Appeal from the Circuit Court of Lee County; tlie Hon.
JohnD. Cbabtsee, Judge, presiding.
Messrs. W. & W. D. Babqe and M. Rosenthal, for appeU
lauts.
Mr. A. K. Trusdell, for appellee.
C. B. Smith, P. J. This was a bill in equity, brought by
appellee against appellant to set aside a certain deed made by
Joseph Brechon, conveying his farm to his children, Jules P.,
Gustavus P. and May P. Brechon for a consideration of $8,000.
One thousand was paid at the time and a note and a mort-
gage given for the remaining $7,000. This deed was made
June 15, 1885. Some time after tliis deed was made and the
mortgage executed an arrangement was made between Joseph
Brechon and his children that the note and mortgage for
$7,000 should be canceled, and in lieu thereof the children
entered into an agreement binding themselves to pay the
father and mother the annual sum of $200 per year during
their natural lives. The $1,000 paid on the farm was bor-
rowed of Alexander Robertson, one of the defendants, and
a mortgage on the farui given him to secure this loan by the
children of Joseph Brechon above named.
Second District — December Term, 1890. 259
Brechon v. Dois,
Prior to the date of the foregoing transaction, Peter
Brechon, a son of Joseph, had rented a farm from appellee,
Duis, and given his note or notes for the rent to accrue in the
sum of $1,000, and Joseph Brechon had become surety for his
son on this note, and it was for a failure to pay this note, or some
part of it, and which it is claimed was reduced to judgment
against Joseph Brechon, that this bill was filed. The bill
charges that the foregoing sale of the land to the children
of Joseph Brechon was fiaudulent and made with intent to
liinder and delay appellee in the collection of his judgment.
This charge in the bill was denied by all the defendants, and
strict proof of every allegation in the bill demanded. Issue was
joined and the cause heard by the court and the prayer of the
bill gi'anted and the deed set aside as fraudulent. Appel-
lants prayed an appeal and obtained sixty days in which to
])repare a certificate of evidence. They never asked for a
certificate of evidence, nor did the appellee take the precaution
to have a certificate of the evidence, nor does the decree recite
what the evidence was or the findings of the court. The evi-
dence is not present either in the record nor in the decree. The
decree will, therefore, have to be reversed because there is not
sufficient evidence pi:esent in the record or decree to support
the decree of the court, which must be done under our prac-
tice. There is not even evidence of a judgment. Marvin v.
Collins, 9a III. 510; Gage v. Eggleston, 26 111. App. 599;
Baird v. Powers, 131 111. 66.
Without any reference to the merits of the case the decree
will be reversed and cause remanded.
Meversed and remanded.
260 Appellate Courts op Illinois,
Vol. 39.] Cbieago Sasb, Door and Blind Mfg. Co. v. Sbaw.
330
i® The Chicago Sash, Door and Blind Manufactur-
ing Company
V.
Elizabeth J. Shaw.
Practice — Time for Filing Transcript— Stipulation Extending,
No stipulation between the parties can excuse the appellant from a com-
pliance with (he commands of the sbitute as to the time in which a truiibcript
of the record must be filed in this court.
[Opinion filed June 18, 1891.]
Appeal from the Circuit Court of Lee County; the Hon.
John D. Ckabteee, Judge, presiding.
Messrs. K. S. Fabrand and R. D. Huzaqh, for appellant.
Mr. Sherwood Dixon, for appellee.
Per Curicmi, The last day of the September term, 1890,
of the court at which the decree in this case was rendered
t^as the 18th day of October, 1890. More than twenty days
intervened between that day and the first day of the December
term, 1890, of this court. The record should have been tiled
at the last December term. It appears that a stipulation was
signed by solicitor for appellant and solicitor for appellee on
the 18th day of November, extending the time for filing
appeal bond and presenting a certificate of the evidence until
the 18th of December — several days after the convening of
this court at the December term — and for that reason appel-
lant now insists that the motion to dismiss tliis appeal should
be overruled. Under the statute it was obligatory upon the
appellant to file the transcript of record in this court at ihe
December term thereof. As this w^as not done, the appeal
must be dismissed. Any stipulation of the pai'ties that the
Second District — May Term, 1891. 261
C, B. & Q. R. R. Co. V. Evans.
transcript of the record could be filed at a later time than
that commanded by the statute, can not be recognized as of
any validity. The statute is peremptory that the appeal
shall be dismissed if its conditions are not complied with in
reference to filing the record. This court so held in the case
of Hatch V. Wegg, 5 III. App. 452.
Motion aicstained and appeal dismissed.
, 39 261
j 89 185
Chicago, Burlington & Quincy Kailroad Company |iq9 ^^^
V.
John H, Evans.
Practice — Time for Filing Copy of Record — Computation of— Construc-
tion of Statute,
Under Sec. 73, Chap. 110 R. S.,regulatinf? the time within which a certi-
fied copy of therecord must be filed in the Appellate Court, the proper rule
i» to exclude the day on which the time commences to run and include the
day to which it should run.
[Opinion filed June 18, 1891.]
Appeal from the Circuit Court of Warren County; the
Hon. John J. Glenn, Judge, presiding.
Messrs. Sweeney & Walker, for appellant.
Messrs. Gkiek & Stewart, for appellee.
Lacby, p. J. The appellee moves the court to dismiss
appellant's appeal in this case, and assigns for cause that a
certified copy of the record of the judgment appealed from
was not filed in this court in apt time required by the statute.
Tlio facts are as follows : The September terra of the
Circuit Court, A. D. 1890, of which the judgment in question
was appealed from, adjourned November 22, 1890. The next
term of the Appellate Court convened December 2, 1890.
262 Appellate Courts op Illinois.
Vol. 39.] C, B. & Q. R. R. Co. v. Evans.
If the day on which the Circuit Court adjourned be excluded
and the first day of the Appellate Court be included, then ten
days elapsed between the day of adjournment of the Circuit
Court and the convening of the Appellate Court; and if
such computation be admitted as correct, then by the terms
of the statute the record should have been filed in this court
by the tenth day of the December term, 1890, and not hav-
ing been filed herein till long afterward, the appeal should
be dismissed. The appellant contends that under the statute
only nine days elapsed between the adjournment of court
and the convening of the Appellate Court, and hence the
appeal is brought here in time. Upon the construction of
Sec. 73, Chap. 110, the right to file the record of said cause
at this term of court depends. The section in question, after
providing for the filing of an authenticated copy of the record,
in the Appellate or Supreme Court, provides that if twenty
days shall have intervened between the date of the judg-
ment appealed from, now so changed as to require the appeal
to be taken from the day of the adjournment of court,
instead of the date of the judgment, and the sitting of
Appellate or Supreme Court, "but if ten days, and not twenty
days, shall have intervened, as aforesaid, then the record shall
be filed, as aforesaid, on or befoie the tentli day of said suc-
ceeding term; otherwise. said appeal shall be dismissed until
further time to file the same shall have been granted."
It is contended by appellant that the clause, " interven-
ing," etc., between the adjournment of the court and the
convening of the Appellate Court, should be construed so
as to require that the day of the adjournment of the
Circuit Court, as well as the day of the convening of the
Appellate Court, should both be excluded. In such case
only nine days would intervene, and the appeal brought here
would be in apt time. We do not understand that such is
the proper construction of the act. It has been uniformly
held tliat where language like that in the above sections
is used it is the rule to exclude the day on which the time
commences to run, and include the day to which it should run.
Vairin V. Edmonson, 5 Gilm. 270; Eoan v. Eohrer, 72 III.
582; Higgins v. Halligan, 46 111. 173.
Second District — December Term, 1890. 263
Westgate v. Ascbenbrenner.
Therefore we must hold that the authenticated copy of the
record was not filed in this court in the time required by the
statute, and in accordance with its peremptory provisions the
appeal should be dismissed. But the appellant contends that
appellee has waived his right to dismiss the appeal by assign-
ing cross-eiTors and filing his briefs, and therefore his motion
should not be sustained. Such has not been the ruling of this
and other Appellate Courts of this State. It has always been
held that the parties could not by such acts waive the right to
move for dismissal, and indeed the court might dismiss the
appeal on its own motion. The motion will have to be sus-
tained and the appeal dismissed.
Motion to dismiss appeal herein granted.
George Westgatb
V.
Rein HART Aschenbrenner,
Rfplevin -*- Alleged Sale — Evidence — Instruetions — Stenographer's
Notes*
1. In an action of replevin, tbis court bolds, the jnry having^ been cor-
rectly instructed, and the evidence supporting the verdict, that the judg-
ment for the plaintiff must be affirmed.
2. Upon petition for rehearing, where the petitioner complained that
a point of law had been overlooked by the court, held, that as the point in
question had not been presented by the instructions asked in the court
below, it was not to be considered here.
3. Although an instruction may be erroneous considered as an abstract
statement of law, yet where the court can see that the jury were not mis-
led, the judgment will not, on account of such error, be reversed.
[Opinion filed December 22, 1890.]
Appeal from the Circuit Court of Lee County; the Hon.
JoHi; D. Cbabtbee, Judge, presiding.
264 Appellate Courts of Illinois.
Vol. 39.J Westgate v. A«:chenbrenner.
Messrs. Dixon & Bethea, for appellant.
Messrs. R. S. Farkand and J. E. Lewis, for appellee.
Per Curiwm, This case was a suit in replevin to recover
the possession of a road-cart, which, as appellee claimed, he
had sold and delivered to appellant for $30, which was to be
paid for on delivery or the next morning, and the purchase
price not being paid as ao:reed, the appellee brought the suit.
It is tlie counterpart of the same transaction litigated in ap-
pellant against appellee and reported in this volume, page 26(^,
The same complaint is made that the evidence fails to sup-
port the verdict. We think it sufficiently supports it, and
there was no error committed by the jury.. It was correct for
the court to refuse to allow the stenographer's notes to be
read to the jury as a part of the evidence to refresh the jury's
mind as to what the evidence was. "
It was not error under the circumstances in this case to
limit the number of appellant's impeaching witnesses.
Seeing no error the judgment is affirmed.
Judgraent affirmed.
Upon Rehearing.
[Opinion filed June 23, 1891.]
Per Curiam. "We have examined the appellant's petition
for rehearing and the points made. It is complained that the
court has not noticed all the points made in appellant's brief.
This may be, but we had fully considered them and find
nothing after re-examination in the petition to change our
minds as to the rightfulness of the judgment of affirmance.
It is claimed in the petition for rehearing: that there was a law
point in the case that this court failed to notice, to wit:
That the law is that where property is sold and delivered on
credit, that the vendor parts with the title, so that replevin
will not lie. This may be admitted to be tlie law as a general
rule, but this point of law was not raised, or attempted to be
Second District — December Term, 1890. 265
Westgate v. Aschenbrenner.
raised, by iastructions offered by appellant and refused or
given to the jury. The questions of the supposed sale and the
delivery of possession, whether conditional or otherwise, was
one of fact for the jury to pass upon, nninflwenced by instruc-
tions. For anything this court can know, the jury found
from the evidence that the delivery of the cart was only
conditional on the part of appellee, without intention of
parting with the title without payment. If it so found,
the contention of appellant falls to the ground. It is com-
plained by appellant that appellee's fourth instruction is erro-
neous, in telling the jury that ''in case defendant refused to
])erform his part of the contract concerning the sale of the
property in question with intent to abandon it, etc., that the
plaintiff had a right to treat said contract as rescinded," etc.
This instruction as a mere proposition of law might not be
entirely accurate, but when applied to the undisputed facts
concerning the appellant's insistence of what the contract
was, and his entire repudiation as to the claim of original
sale made by appellee, we can not think tlie jury could ba
misled, and would undoubtedly refer the instruction as point-
ing to the claim of appellant, as the claim of sale to him of
the cart by •appellee, and his refusal to carry out or agree to
any such supposed sales, and this will be clearer when read
in connection with the modification to appellant's offered
instruction, which reads : " This would be so unless the jury
believes from the evidence that a time was fixed by the
parties for the payment of the purchase price, and at the
time so fixed the defendant repudiated the contract and denied
liaving purchased the cart, in which event the plaintiff would
have a right to rescind and could then maintain replevin
for the cart."
It will be remembered that on the trial appellant entirely
denied that there was any sale of the cart, and insisted that he
traded a top buggy for the cart and two cows, and he there-
fore repudiated any claims of sale. Undoubtedly there was a
misunderstanding of the parties as to the sale of the cart, and
a denial on appellant's part that there was a sale. The
instructions and modifications could only refer to this fact,
266 Appellate Courts of Illinois.
Vol. 39.] Westgate v. Ascbenbrenner.
and in such case it was not error to instruct the jury that
appellee might acquiesce in appellant's claim and recover the
cart. In addition to this we think the evidence clearly
supports the verdict, and that justice has been done. We can
not see how any other verdict could have been returned prop-
erly in the case.
Petition for rehearing denied. '
George Westgate
V.
Reinhart Aschenbrenner.
Replevin — A lleged Sale — Evidence,
No error of law appearing, and the evidence supporting the verdict,
the jadgment for the defendant must be affirmed.
[Opinion filed December 22, 1890.]
Appeal from the Circuit Court of Lee County; the Hon,
John D. Cbabtbsb, Judge, presiding.
Messrs. Dixon & Bethea, for appellant
Messrs. E. S. Faerand and J. E. Lewis, for appellee.
Per Curiam. This was an action of replevin commenced
by appellant against appellee to recover the possession of two
cows, resulting in a verdict in favor of appellee.
The errors assigned and argued are that the verdict was
against the weight of the evidence, and that the court gave
an improper instruction for appellee. We will first consider
the complaint that the verdict is manifestly against the weight
of the evidence. It is true that appellant testified that he
purchased the cows, and he was supported by one witness who
testified to alleged admissions of appellee, but this evidence
was met by as positive evidence on the other side that there
Second District — May Teem, 1891. 267
Mississippi Valley Manf ^rs Mut. Ins. Co. ▼. Bermond.
was no sale. Under the evidence the jury were fully justi-
fied in tlieir verdict. The instruction complained of was appel-
lee's third, which told the jury in substance that in order to
constitute a valid sale and purchase of the cows, the minds of
the parties must meet. This instruction was correct in prin-
ciple and applicable to the evidence in the case, and it was
therefore not error to give it.
The judgment of the court below will therefore be affirmed.
Judgment affi^^med.
Upon Rehearing,
[Opinion filed June 23, 1891.]
This case grew out of the conti'oversy between the parties,
involved in the preceding case, in which a rehearing has at
this term been denied, and for the reasons given in the opin-
ion therein a rehearing in this case is denied.
Petition for reheaHng denied.
Mississippi Valley Manufactukers' Mutual
Insurance Company
V.
M. Bermond.
Practice — Failure to Name Court to Which Appeal is Taken,
Where neither the prayer for an appeal nor the order of the Circuit
Court flrrnntin^ the same, names ihe court to which the appeal ifl to be taken,
but the tnmscript is filed in this court, the case m«st be stricken from the
docket.
[Opinion filed June 23, 1891.]
Appeal from the Circuit of Rock Island County; tlio
Hon. Arthujr A. Smith, Judge, presiding.
39 '2G7\
61 2071
268 Appellate Courts of Illinois.
Vol. 39.] M'ississippi Valley Manfrs Mut. Ins. Co. ▼. BermoJid.
Messrs. Jackson & Hurst, for appellant.
Messrs. J. T. Kenworthy and McEniry & McEniry, for
appellee.
I^er Curiam, Judgment was rendered in favor of appellee
and against appellant by the Circuit Conrt of Kock Island
County; and upon the rendition of such judgment appellant
pi'ayed an appeal which was allowed upon the tiling of bond and
bill of exceptions within the time limited in the order. No
court was named in the prayer for appeal nor in the order of the
court allowing the same. The statute provides that appeals
from Circuit Courts may be taken to the Appellate Courts,
provided such appeals shall be prayed for and allowed at the
term at which the judgment was rendered. In order to give
this court jurisdiction of an appeal, such appeal must be
prayed for by the party desiring to appeal, and must be
allowed by the court from which the appeal is taken. It is
the duty of the court to act upon the prayer for appeal, and
allow or disallow the same. If the case is one of which this
court would have jurisdiction on appeal, a prayer for appeal
to this court should be allowed; but if a franchise or other
matter of which this court has no jurisdiction is involved it
should not be allowed. The allowance of an appeal is the act
of the court In this case the Circuit Court never granted
appellant an appeal to this court. The tiling of the transcript
of the record in this court is the act of appellant, and the
right to bring the case to this court by appeal can not be
acquired by its act alone. There is no appeal here for this
court to act upon, and the case will be stricken from the
docket. Gage v. Arndt, 114 111. 318.
Stricken /^rom docket.
Second District — May Teum, 1891. 269
Woodburn v. Buum.
Charles H. Woodburn et al.
V.
Edgar G. Baum.
Practice.
Judgment reversed under rule 27, no brief having been filed by appellee.
[Opinion filed June 25, 1891.]
Appeal from the Circuit Court of Whiteside County; the
Hon. James H. Cartwright, Judge, presiding.
Messrs. John G. Manahan, for appellants.
Messrs. O. F. Woodruff and J. D. Andrews, for appellee.
jPer Curiam. The appellees have failed to file any brief in
this case as required by rule 26 of this court, and in accord-
ance with rule 27, the judgment of the court below ma}' bo
reversed and the cause remanded in our discretion. We are
requested l>y attorney for appellant to reverse the judgment
and remand the cause, in pursuance of such rule 27. It is
therefore ordered that the judgment in the above entitled
cause rendered by the Circuit Court be reversed and the
cause remanded.
Reversed and reiaanded.
Judge Cartwright, having tried the case below, took no
part in the decision here.
270 Appfxlate Courts of Illinois.
Vol. H9.J Piano Mfj?. Co. v. Piirmenter.
39 270l
56 259
The Plano Manufacturing Company
V.
39 S70
^2-23« ^ ]yj Parmenier.
Practice — Weight of Evidence — Instruefions-^Delivery to Common Car-
rier as Evidence to Show Delivery to Consignee — When Consignee is
Agent of Consignor Instead of Purchaser;
1. Where a plaintiff states such a case in an instruction as requires a
verdict in his favor, and requosta the court to instruct the jury, that if thoy
find the facts to be as stated, then they must return a verdict for the plaint-
iff, it is error for the court to substitute the word may for must,
2. Proof of delivery of goods to and their shipment by a common carrier
to a consignee, suitably and properly billed and directed, is just as strong
and effectual prima facie evidence of their receipt by the consignee, even if
such consignee is the ag'>nt of the consignor, as it would be if the consignee
were the purchaser of such goods.
[Opiuion filed June 26, 1891.]
Appeal from the Circuit Court of Peoria County; the Hon.
Lawrence W. James, Judge, presiding.
Mr. Arthur Keithley, for appellant.
Mr. John M. Tennery. for appellee.
TJpTON, J. This case was before this court at a former term,
and will be found reported in 32 111. App. 683, to which we refer
for a full statement of the f Jicts. It was reversed in this court
on the former appeal because of an erroneous instruction as to
the burden of proof to establish mistake or fraud in a settle-
ment claimed to have been made between the parties October
24, 1885. Upon the remand to the trial court the case was
reinstated and again heard with a jury, which resulted in a
verdict for the appellee. A motion for a new trial was inter-
posed, which, being overruled, the case was again appealed to
this court. In brief as to its facts the case is simple; appel-
lant's right of recovery depends upon the fact of whether or
Second District — December Term, 1890. 271
Piano MffT. Co. v. Parmenter.
not appellee, who was the agent of appellant in making
sales of its machinery, at Knoxville, 111., received of it in
the summer of 1885, three or four mowing machines, and
whether appellee has paid for all the machines he received
of appellant that season. We have given to this record -
carefnl perusal and attentive study, particularly induced
thereto by the various trials had of the case, and we arc
compelled to say that the verdict in this case is manifestly
against the weight of the evidence and can not be supported
thereby. There had been a settlement between the parties
according to a settlement sheet, which charged appellee
with three mowers, one of * which was stated to have been
shipped from Peoria and the other two from Piano. Appel-
lant claimed a recovery for a fourth mower claimed to have
been shipped from one Stumpf, of Avon, and not charged on
the settlement sheet It was conceded by appellee upon the
hearing and trial in the Circuit Court that he had received
from appellant three mowing machines, being two of those
named in the settlement sheet, and the one claimed to have
been sliipped appellee by Stumpf, of Avon (for appellant),
but denied receiving one of the three mentioned in that sheet,
and disputed the correctness of the sheet in that respect.
Appellant asked the court to instruct the jury that if they
believed from the evidence that the appellee received the three
mowers as mentioned in the settlement sheet, in evidence, and
if they believed in addition thereto appellee received one
other machine from Stumpf, of Avon, then the appellant
mtist recover in this case the value of one machine as iixed
by the contract, less his commission also jBxed by that con-
tract. The trial court refused to give this instruction as
asked, but of its own motion modified the same by striking
out the word " must " and inserting instead thereof the word
"may," thus in effect telling the jury that although the
evidence might be sufficiently strong to establish the fact
in their minds that appellee had in fact received from ap-
pellant four mowing machines, under a contract to pay or
account for all he should receive, and that appellee had
accounted for throe only, still, under such circumstances, if
272 Appellate Courts of Illinois.
VaL. 39.] Piano Mfg. Co. v. Parmenter.
established by the evidence, they are not compelled to find a
verdict according to the facts, as establislied by the evidence,
but "772ay" do so if they see fit. This was manifestly erro-
neous and should not have been so modified. The giving of
this instruction under the evidence in this record may in
great part account for the verdict returned by the jury.
We also think the trial court erred in giviii;j; appellee's first
and second instructions as to the burden of proof; these two
instructions are certainly in direct conflict with the views of
this court upon tliat question as stated in our former opinion.
We are also clearly of the opinion that the trial court
erred in giving to the jury two instructions, which are not
numbered in the series, in which the jury are instructed that
the law applicable to the case of delivering to a common
carrier of goods by a vendor^ has no application to the case
at bar.
We think the law is, that the proof of delivery to, and the
shipment of goods by a common carrier to a consignee, suit-
ably and properly billed and directed, is just as strong and
effectual pi*ima facie evidence of their receipt by the con-
signee, even if such consignee is agent of the consignor, as it
would be if such consignee were tlie purchaser of such
goods. The rule is properly the same in both cases, and the
trial court should not have instructed the jury differently.
This evidence was not introduced to show that ap])ellee
was the purchaser of the machines, but simply to show
prima facie that he received the machines so shipped. For
the reasons indicated the judgment of the Circuit Court is
reversed and the cause is remanded for further proceedings
not inconsistent with the views expressed in this and the
former opinion of this court.
Reversed and cause remanded.
^
Second District — May Term, 1891. 273
Henningr v. Eldridge.
Gilbert D. Henning
V.
Gilbert Eldridge.
Practice — Res Adjudicata — Points Passed upon on Former Appeal.
Where a decree of the Circuit Court was upon a former appeal reversed
for a single error and remanded, and upon a retrial the court below cor-
rected that error and entered a decree accordingly, upon a second appeal,
this court will not bold that the court below should have passed upon claims
that had been adjudicated by this court upon the former appeal.
[Opinion filed July 2, 1891.]
Appeal from the City Court of Aurora, Illinois; the Hon.
Russell P. Goodwin, Judge, presiding.
Mr. A. C. Little, for appellant.
Messrs. A. J. Hopkins, N. J. Aldrioh and F. HThatcheb,
for appellee.
Per Curiam. This case was here at the December term,
1890, and had been here in July, 1883, and reported in 14 111.
App. 191. On the last appeal in which an opinion of this
court was filed December 8, 1890, see 38 111. App. 551, various
errors were assigned and only one found in the report of the
master, to wit, an item of $311.50 and the interest thereon
charged in the master's report against the aj)pellant, and judg-
ment was reversed and the cause remanded alone for that
error, with instructions to the court below to strike ont that
item of the account and accrued interest thereon charged
thereon by the master. This court there said, " We see no
other error in the record."
The case was certified back ta the court below, and that
court in pursuance to the direction of this court struck out
the above named item and the interest thereon and reduced
the general finding of the master to the sum of $1,719.59, and
Yoi. XXXIX la
274 Appellate Courts of Illi.vois.
Vol. 39.1 McDole v. McDoIe.
ordered appellant to pay it over to appellee within sixty days.
From this order and judgment this present appeal is taken
and ai>pellant assigns for error this action of the court below.
We are now asked to hold that the court below should have
passed on and adjudicated claims which this court upon the
former appeals had passed on and adjudicated. This we
can not do. We have no authority even if we had the dis-
position to do so. Hough V. Harvey, 84 111. 308; Wadhams
V. Gay, 83 111. 250.
This is the third time we have examined the facts of this case,
and are fully convinced that the linal judgment in the case it
as near right and just as it is possible for this court to make
it. The judgment of the court below is therefore affirmed.
Judgment affirmed.
S. p. McDoLE
V.
A. G. McDoLE.
Real Property — Bill in Chancery — Tenant Per Autre Vie — JVaste —
Method of Entintating.
1. Upon the ca<«e presented it. is held: That the appellant was a tenant in
possession per autre vie, and that he was liable to the owner of the inher-
itance for wajBte permitted.
2. Upon the question of the value of wood cut and sold from the prem-
ises, testimony of witnesses stating the amount of wood actually cut and
sold outweighs that of witnesses estimating the value of the wood per acre.
[Opinion filed August 3, 1891.]
Appeal from the Circuit Court of Kane County; the Hon.
Chakles Kellum, Judge, presiding.
Messrs. Botsfobd & "Watnb, for appellant.
Mr. Chablbs Whbaton, for appellee.
Second District — December Term, 1890. 275
McDole V. McDole.
Lacey, p. J. This was a bill in chancery in the Circuit
Court by appellee against appellant, commenced on the 23d
day of May, 1881, for an accounting and the removal of an
incumbrance on certain real estate described in the bill of
complaints. It is alleged' in the bill of complaints that on the
23d day of April, A. D. 1875. Kodney McDole, the father of
the complainant and respondent, conveyed in fee simple to said
parties 414 acres of land, situate in the county of Kane, partly
as gift and partly as consideration of paj-ments by each to
their father of the sum of $4,000, which payments were evi-
denced by two certain promissory notes executed by each of
them, payable to the order of said Rodney McDole two years
after his death, with interest at six per cent, to commence one
year after date of said Rodney McDole's death, and to secure
the payments of said notes, the makers thereof executed a
mortgage to the payee on the premises so conveyed to com-
plainants and respondents; that afterward the complainants
becoming indebted to the defendants on two promissory notes,
one of $500 and the other of $350, gave to the defendant a
quit-claim deed of his interest in said premises, but that said
deed was not intended to be absolute, but only as a security
for said indebtedness; that defendant at the same time gave
to the complainant a written defeasance reciting the said in-
debtedness, and agreeing to reconvey the said premises on the
payment of said sums represented in said notes with interest
thereon at ten per cent; that at the time of the making of
the deed of the farm from Rodney McDole to the complain-
ant and defendant, April 23, 1875, it was by lease or obliga-
tion in writing, agreed that the defendant, S. P. McDole,
should occupy and have the exclusive possession of the said
farm during the lifetime of Rodney and one year after, if the
wife of Rodney survived him, at an annual rental of $600, to
be paid on or before April 22d of each year during this term,
and then upon the death of Rodney as aforesaid, the said
complainant should come into joint possession of the said
premises, subject, however, to the payment of the said $4,000
note made by him. The bill further claims that at the date
of the deed from Rodney to the complainant and defendant?
276 Appellate Couiits of Illinois.
Vol. 39.] McDole v. McDole.
there was a considerable quantity of stand ing timber on the
said premises, some of which the defendant has since cut off
and sold and appropriated to his own use, and the bill asks for
an accounting from the defendant and the application of the
proceeds from the wood sold on the indebtedness of the com-
plainant.
The facts so far recited are not seriously questioned, but in
so far as the bill states that the notes of $500 and $350 made
to the defendant and the quit-claim deed do not bear the date
of the transactions as actually had, and that as a part of the
terms of the said lease the defendant was to make all the
repairs and improvements on the farm at his own expense,
and that there were large and valuable tracts of timber cut off
of the farm by the defendant and sold, of more than sufficient
value to pay said notes, these allegations are denied. The
answer also sets up, among other things, that the defendant
expended large sums of money in improvements and repairs
on said premises, and that he should have the value of same
allowed to him in the accounting. The answer denied the
jurisdiction of the court in the premises, and set up the
statute of frauds as to all the oral agreements in the bill. It
also appears that on August 1, 1891, the defendant com-
menced an action on the common law side of the said court
against the complainant to recover an alleged indebtedness
from complainant to defendant, aside from that represented
in the two notes, and in his bill of particulars makes the
aggregate sum of such indebtedness $458.64. To this action
the defendant appeared and pleaded the general issue, set-off,
and statute of limitations. At the October term, 1881, by
stipulation of the parties, this and the common law suit were
consolidated, and at the February term, 1884, of the said court
the cause was referred to the master to take proof, and on the
27th day of June the master's report was filed, stating the
value of the wood cut and sold from the farm b}' defendant
at $1,350, and the indebtedness of the complainant on the two
notes and other accounts allowed by him at the sum of $1,253.45,
making a balance to complainant from defendant of the sum
of $96.55. The court, overruling all exceptions, found and
Second District — December Term, 1890. 277
McDole V. McDoIe.
decreed the said two notes of $500 and $350 fully paid and a
balance due from defendant of $96.55, and ordered defendant
to deed to complainant the interest so conveyed by him to
the defendant by deed of January 1, 1876, and pay the said
$96.55 and costs of suit. The court, by its decree as to all
questions covering improvements on the said lands, reserved
the same as undetermined. On the first point made by the
appellant, S. P. McDole, tliat he was not liable to account for
the waste permitted by him on the premises in question, we
hold against him. We hald that S. P. McDole was a tenant
in possession during the U£e of Kodney McDole, and was
a tenant per autre vie. Such a tenant in possession can
commit waste as against the remainderman or owner of the
inheritance. 1 Washb. on Heal Prop., page 110, Marg. We
^ill now consider the question in regard to the amount of the
finding of the court below as to the waste committed, and as
to this we think the court was in error. The evidence shows
ti)at the estimate of the witnesses as to the number of cords
of wood per acre is too great, and the evidence by estimate is
not of that reliable character as that of witnesses showing the
actual amount cut and hauled away. The best evidence as to
the amount of wood gotten from the place is that given by
witnesses who personally knew what was actually taken,
rather than the estimate of others as to what the land would
yield, and such evidence should be taken in preference to
mere guess-work of witnesses, however reliable as to imj^ar-
tialitv. We think as to the value of the wood in the tree, as
shown by the evidence, it would not be to exceed $2 to
$2.35 per cord. If the hauling to the market was worth
$2 per cord, and cutting without board eighty cents per cord,
and the wood sold at $5 per cord, the value of the wood in the
tree would not exceed $2.20. The estimate of the witnesses
as to the amount of wood taken necessarily includes the
posts that were cut, which, as a tenant in possession, appel-
lant had a right to use for repairs. It also includes wood for
firewood, which he had a right to use. This, we think, was
not taken into account in the court's estimate, and shows its
ejToneousness. Taylor's Landlord and Tenant, Sec. 351,
278 Appellate Courts of Illinois.
Vol. 89.1 Goldsbrough v. Gable.
and cases cited. The amount paid by appellant as a p^uaran-
tor of lease for A. G. McDole's ofBce rent of $106, tlie
master should take into account, and on both sides all claims
to the time of hearing. The bill of particulars can be amended
as a basis of calculation. As to the proper mode of calculat-
ing what a tenant in possession has received see Moshier v.
Norton, 100 111. 63, and 83 111. 524. The decree of tlie court
below is reversed and the cause remanded, with directions to
refer the cause to the master in chancery to take further
proof if desired by either party, and to make the calculations
on the evidence according to the views here announced upon
the whole evidence as it may hereafter appear.
lieversed and reinanded with directions*
Richard Goldsbrough
V.
John M. Gable,
Practice — Time for Talcing Appeal to Supreme Court — Not Extended
hy Pendency of Petition for Rehearing,
The time within which an appeal from a judgment of this court to the
Supreme Court may be prayed is limited to twenty days, and that time is
not extended by the pendency of a petition for rehearing, but a party must
elect which of these remetlies he will parnue. He can not have both unless
his petition for rehearing is disposed of within the twenty duys.
[Opinion filed June 24, 1891.]
Appeal from the Circuit Court of Peoria County; the
Hon. S. S. Page, Judge, presiding.
Messrs. Sheen & Lovett, for appellant.
Messrs. Isaac C. Edwards and George B. Foster, for
appellee.
Per Curiam, Having examined the petition for rehearing
in this case and considered the same, a rehearing is denied.
Second Disthict — December Tekm, 1890. 279
Qould V. Warne.
The petition for rehearing bein^ denied, the appellant
prays for an appeal to the Supreme Court. The final juag-
ment of this court in the case was rendered May 28, 1890 (36
111. App. 363), and more than twenty days have elapsed since
that time. The time within which such appeal may be prayed
is limited by statute to said period of twenty days. In the
case of Sholty et al. v. Mclntyre (opinion tiled January 10,
1891), K E. Eep., Vol. 26, p. 655, the Supreme Court decided
that an appeal must be prayed within twenty days from the
rendition of the judgment notwithstanding a petition for
rehearing may be pending. It is there said that a party is in
eflPect put to this election, to either apply for a rehearing or to
appeal, but he clearly can not have both remedies, unless he
can have his petition for rehearing presented and decided
before the time for taking an appeal has elapsed. The prayer
for an appeal in this case was that if the opinion tiled should
be held to be the law of the case and the rehearing be denied,
then in that case an appeal was prayed. The appellant could
not pursue both remedies by asking the judgment of this court
upon tlie alleged errors complained of in his petition and
saving his right to pray for an appeal after the expiration of
the time allowed by law. Tlie prayer for appeal will be
denied.
Appeal denied.
39 279,
C- W. Gould et al. li?Li»!
1 39 279
John Warne et al.
Former Adjudication — Omission of Interest from Judgment — Possible
Error, tchen Immaterial.
L DeciBion in same case on former appeal, 27 111. App. 651, followed.
2. Where plaintiff was entitled under the statute, to interest on his
claim, but such interest was not included in the judgement, an objection
280 Appellate Courts of Illinois.
Vol. 89.] Gould v. Wurne.
raised by the defendant, appellant, to the amount of the judArment. the
part objected to being less th m the interest due but not included in the
judgfiuent, mas ^ ignored by this court.
[Opinion filed August 3, 1891.]
Appeal from the Circuit Court of DeKalb County; the
Hon. Chakles Kellum, Judge, presiding.
Messrs. Sherwood & Jones and Botsfokd & Wayne, for
appellants.
It is a universal rule of construction that a surety can not
be bound beyond the express and literal conditions of his
undertaking. He has a right to stand up9n the very terms
of his contract. Miller v. Stewart, 9 Wheat. 680; Field v.
Eawlings, 1 Gill. 681.
Any agreement between the principal and his creditors by
which the terms of a bond are changed without the assent of
the sureties, releases the sureties from liability. Cunningham
V. Wrenn, 23 111. 64; Burt v. McFadden, 68 III. 479; Dodgsou
V. Henderson, 113 III. 360.
The measure of the liability of sureties is fixed by the
terms of the instrument they sign, and such undertaking can
not be enlarged or varied by judicial construction. Their
undertaking will be construed as the words used are ordi-
narily understood. Mix v. Singleton, 86 111. 194; Phillips v.
Singer Mfg. Co., 88 III. 305; People v. Tompkins, 74 111. 482;
Burgett V. Paxton, 15 III. App. 380.
A surety is not held beyond tliQ precise words of his under-
taking, and in case of doubt as to his liability, the doubt is
generally, if not necessarily, solved in his favor. StuU v.
Hance, 62 111. 62; Adams v. People, 12 111. App. 380.
Messrs. Charles Wheaton and W. R. S. Hunter, for appel-
lees.
Whatever estops the principal in a case like this, estops
the surety.
In McCabe v. Raney, 32 Ind. 399, it was held, that any
act of the principal which estops him from setting up a
Seco.xd District — December Term, 1890. 281
Gould 7. Warne.
defense, jiersonal to himself, operates equally against liis
sureties. To the same effect is Stovall v. Banks, 10 Wall.
383; Baker v. Preston, 1 Gilmer (Va.), 235. In the last case
it was decided that the books were conclusive evidence against
the treasurer and his sureties.
In U. S. V, Girault et al., 11 How. 27, it was held that the
principle and surety were equally estopped from setting up a
defeni^e.
In the case of Cawley et al. v. The People, 95 111. 249, the
same principle was laid down as was laid down in the case of
Chicago V. Qage.
In that case the court says: "While the liabilities of
sureties are to be strictly construed, it is not the duty of
courts to aid them to escape liability by a technical and
hypercritical construction."
In that case the court holds that the books were proper
evidence of the state of the accounts against the principal and
against the sureties. The court says: "We are unable to
imagine wliat would be better evidence against him and his
sureties. The entries in the books were made by him, or by
his bookkeeper, under his direction oj* supervision. No one
can believe that he would' permit improper charges to stand
against him uncorrected on his books, nor that he did not
examine them to see they were correct. And we are aware
of no other means by which he couJd be as fairly charged
as by his own books, if honestly kept, and he surely would
not claim they were unfairly kept against himself."
The same principle is decided in Roper v. Sangamon
Lodge, 91 111. 518, where the sureties wore held equally
with the principal to be estopped from denying the state-
ments of the principal as to the condition of his accounts with
the lodge.
Lacey, p. J. This is an action of debt commenced in the
Kane Circuit Court by John Warne, William Beith and Moses
Gates, who sue for the use of William Taylor, Ed. Taylor,
Winfield G. Smith, Stuart Wilkinson, John W. Hunt, Michael
Tiemey, Philip T. Bartholomew, Elisha Warne, Moses C.
Gates,'^ O. E. Root, Aaron Whitney, Charles Moulding,
282 Appellate Courts of Illinois.
Vol. 39.J Gould v. Warnp.
Thomas McNair, L. E. Bartlett, Robert Alexander, N*. Ras-
mussen, Clark Anderson, J. Eliason, J. Crosby, Thomas
Jones, Frank Graunt, Patrick Scully, D. McDonald, Bradford
Kichmond, George D. Smith, 6. W. Warne, J. E. Bartlett
William Reeves, George Reeves, J. C. Jphnson, John Warne,
L. R. Reed, L. Richmond and A. D. Richmond, against C.
W, Gould, Ed. Hugg, D. F. Barclay and D. H. Butler.
This action is predicated on a bond executed by the said
Gould and Hugg as principals, and by said Barclay and But-
ler as sureties, dated April 24, 18S2, in the penal sum of
§3,000, conditioned as follows :
"The conditions of this obligation are such that if the
above bounden Gould & Hugg, their heirs and administrators,
or either of them, shall well and truly pay or cause to bo paid
unto the said patrons of the Blackberry Cheese Factory, or
their heirs or assigns or administi'ators, tlie just and full sum
of the monthly dividends declared by the said Gould & Hugg
to their Blackberry patrons for the milk delivered thereat,
and shown by their books to be paid patrons due, then this
obligation to be void and of no effect."
At the date of this bond the defendants Gould & Hugg
were the owners of and conducting a cheese factory at Black,
berry, in said Kane county, on what is known as the "dividend
plan. " The usees, with others, were, or subsequently became
patrons of the factory.
The proprietors of the factory received the milk of these
patrons at their factory, manufactured it into butter and
cheese, and were paid for manufacturing and selling, four
cents per pound for butter and two cents per pound for
cheese. After tlie product was disposed of and the money
received therefor, the proprietors deducted the costs of man-
ufacturing, etc., and divided the net proceeds of the product
among these patrons in proportion to the milk furnished by
each. Gould & Hugg, in order to insure a prompt and faith-
ful accounting for this property put into their hands, exe-
cuted the bond in question, with the condition as above set
forth.
On the trial in the court below, the appellees claimed that
Second District — December Term, 1890. 283
Gould V. Warne.
the nsees herein, who were the patrons of the milk factory,
had by agreement with the proprietors, Gould <fe Hn^^,
changed the agreement with them to furnish the milk on the
dividend plan and agreed to receive for their milk an amount
equal to the declaredsdividends at another factory, called the
LaFox, and hence tliis amounted to a sale. On the other
hand it was claimed by appellees, usees, that no change had
been made by any agreemefit with them.
The case was tried by the court without a jury, who
accepted the theory of counsel for appellees as to the liability
of the appellants for milk furnished, and gave judgment
against the appellants for the penalty of the bond and dam-
ages in the sum of $1,807.25. The case is now appealed to
this court, assigning as errors such finding by the court and
tlie rendition of the judgment. This is the same case that
was liere once before, wherein the same causes for error were
assigned that are now assigned and one in addition. The
judgment was at that time reversed and the cause remanded
because there was a recovery in favor of certain usees not
named in the declaration; but the claim of the present claim-
ants (usees) herein was sustained by this court. The case will
be found reported in 27 III. App. 651.
In our former opinion we passed on all the objections then
and now made adversely to the claim of the appellants. One
of the main grounds relied upon here for reversal, to wit,
that appellees were allowed more than the dividends agreed
on, was decided adversely to appellants when the case was
licre on former appeal; but in addition to that and as another
ground for holding against appellants on that point wo have
to say that if the judgment is in excess of the dividends
according to the dividend plan and was made upon the books
of Gould & Hugg on the basis of the LaFox dividends, yet
the claim of appellees had been due at the time of the ren-
dition of the judgment on a written contract for over live
years, upon which, under the provisions of our statute, they
were entitled to interest at the rate of six per cent per
annum, which in that time would amount to over thirty per
cent in tlie aggregate, and the judgment, even if based on the
284
Appellate Courts of Illinois.
Vol. 39.]
Gillett V. Ins. Co. of North America.
LaFox plan by Gonld & Hngg in tlieir estimates, would not
be as mncli by a considerable amount as appeltees were enti-
tled to receive if interest bad been allowed on the amount due
strictly according to the dividend plan. The judgment can
not, therefore, be excessive.
For the reasons here given and those given in our former
opinion, the judgment of the court below is affirmed.
Judgment ajjirmed.
39 284
101 1415
L. Gillett and S. L. Gillett
The Insurance Company of North America for
USE, ETC.
Firti Insurance — Payment qf Premium hy Agents — Action hy Campatty
Against Insured for use of Agents — Subrogation — Interest qf Nominal
Plaintiffs — Consent of to Suit — Practice.
1. Where the agents of an insurance company issued a policy of insur-
ance, which was accepted by the insured, but on which the insured failed to
pay the premium when due» and the agents, under their contract with the
company, paid the premium, in an action brought in the name of the com-
pany for the use of the agents against the insured to recover the amount of
the premium, it is held: That the agents were subrogated to the rights of
the company as to the claim under the policy and that no assignment was
necessary to enable them to recover the premium advanced by them.
2. A party defendant can not defend a suit by showing a want of inter-
est in the nominal plaintiff.
[Opinion filed August 3, 1891.]
Appeal from the Circuit Court of Kane County; the Hon.
Isaac G. Wilson, Judge, presiding.
Messrs. William George and SAMtrEL AifiOHULER,for appel-
lants.
Messrs. Hopkins, Aldeich & Thatcher, for appellee.
Second District — December Term, 1890. 285
Gillett V. Ins. Co. of North America.
Lacet, p. J. This suit was bronght by the appellee for
the usees, named Henry L. and James McWethey, against
the appellants to recover the premium of $75 on an insurance
policy of $5,000, dated January 9, 1890, issued by appellee to
appellants, covering a risk on their furm and property at one
and one-half per cent premium for live years from that date.
There is no question raised here as there was in the court
below as to the acceptance of the policy of the insurance
issued and sent to appellants by the appellee's agent, that
point now being conceded. The appellants retained the
])olicy in their possession for about three months after it was
issued and sent to them, and after it went into effect, before
attempting any cancellation of it. The premium was due on
the first day of February following its date, but appellants
failed to pay it. The usees of appellee in this case, the
McWethey brothers, were the local agents of the appellee,
and as such, and in the name of it, issued the policy in ques-
tion, which provides that the insured sliall pay the pre-
mium of $75 due thereon, to the company; that McWethey
brothers, under their agreement with the company, make
monthly settlements with it for the insurance premiums writ-
ten by them, and that if the policy is not ]>ro])erly canceled
they are held responsible for such premiums, and in case the
coinpany does not collect the premium the said usees are
obliged to settle the premium wnth the company; that prior
to the commencement of this suit, in pursuance of such agree-
ment with the* appellee, the appellants liaving failed to pay
the premium, the said usees paid it to appellee themselves,
and this suit is now brought in the name of appellee for
their use, to collect the said premium so advanced from the
.appellants. The appellants never gave the McWethey
brothers any authority to pay this preminm on their accounts.
The appellants insist that the evidence does not warrant a
recovery by the appellee, and that even if it is entitled to a
judgment it should not exceed $15. Appellants' connsel
insist that the contract is between the appellants and appellee,
and in case of the failure of the former to pay, the right
of action is in the latter; that the cause of action is not
286 Appellate Courts of Illinois.
Vol. 39.] Gillett v. Ins. Co. of North America..
negotiable and that the claim is not assigned to the usees
i»f appellee; that it is essential to recovery that the claim
should be assigned in order to vest in the assignees the equi-
table title to the claim and that there is no assignment in the
case; that there is no proof that the appellee ever vested the
usees with the power to use its name in a suit and that appel-
lants can not be madetlie appellee's usees' debtors without their
consent; that the appellee has been paid and its right of
action is gone. The answer to all these suggestions is that
as to appellants, they have never paid the appellee anythifig,
and no one has paid anything to it for them or at their
request, and hence they have never in any way paid the debt
or extinguished it as against them; and the McWethey
brothers certainly never intended to extinguish it and make
a present of it to appellants; they simply paid or advanced
the amount to the appellee as their agents under their agree-
ment with it as a kind of guarantors of the prompt payment
of all premiums and therefore ought, in equity, to be sub-
rogated to the rights of the appellee in the claim under the
policy. Equity would require that the latter should hold the
policy for the usees' protection and the law will presume that
it did. The payment of the premium under the agreement
by the agents of appellee, would be the only assignment the
law would require to give the agents the right to sue on the
policy in the name of appellee for their own use. And this
is a matter in which the appellants have no concern. They
owe the premium on tlie policy and it matters not to them
that the money when collected goes to the usees instead of
the appellee. If appellee does not complain of the manner
of bringing the suit, it seems to us that appellants should not
be lieard to interpose objections. It is and should bo a rule
of law that a party defendant can not defend a suit by show-
ing a want of interest jn the nominal plaintiff. Alsook v.
Cain, 10 Johnson, 400. The appellants make the other point
that the recoverv should onlv have been for $15, the amount
at short rates which had accrued on the insurance up to the
time they claim to have canceled the policy according to its
terms. The trouble with this defense is that appellants did
Second DistpwIct — December Term, 1890. 287
p. & p. Union Ry. Co. v. Herman.
not take the requisite steps to procure a legal cancellation of
the policy under its terms. The policy contains this provis-
ion : "Assured may also cancel this policy and surrender the
same after the premium or premium note has been paid and
the company shall retain short notes and all the expenses
incurred in taking the risk." It will be seen that the pre-
mium has never been paid. In fact, this suit is ])rought to
recover it. Under theSb circumstances no cancellation has
ever taken place. There being no other errors assigned and
faih'ng to discover any in the points made, the judgment is
affirmed.
Judgment affirmed.
Peoria & Pekin Union Railway Company
V.
Emma Herman, Adm*x.
Baih'onds — Negligence of—Personal Injunes — Crossivgs — Duty qf
Railirai/ Company to Provide Fiagman — Absence of, not Ntgligence per se
— Instructions,
1. In an action brougfht afniinst a railway company to recover daninges
caused by tbe killing of plaintiff's intestate at a cro5>8ing of a highway and
defendant's track, where tbe chief ground of complaint was the failure of
defendant to have a flagman stationed at the crossing at the time of the
accident, it is held: That it was error for the court to instruct the jury that
if it was^a reasonable precaution to be exercised by the persons in charge
of defendant's engine to keep a flagman at the crossing, then a failure to do
so would 1)6 negligence. Unless such precaution "^dji necessary it could not
be said to be negligence to have omitted it
2. The failure of a railway company to keep a flagman at a crossing is
not negligpnce per se and an action can not be directly predicated on such
failure and consequent injury, but it may be based upon the failure of the
company to approach the crossing with due care and caution; and the
failure to keep a flagman at the crossing, or any other omission, may be
shown by way of specifications of the cause of such failure. And if from
all circumstances it appears that the doing of a particular thing is neces-
sary to the safety of persons crossing the tracks, then the company is required
to do that thing.
288 Appellate Courts of Illinois.
Vol. 89.] P. & P. Union Ry. Co. v. Herman.
3. An instruction to the effect tliat deceased was required to exercise
reasonable care for his own safety at the time of receiving the injury was
improper.
[Opinion filed August 3, 1891.]
Appeal from the Circuit Court of Peoria County; the
Hon. Laweencb W. James, Judge, presiding.
Messrs. Stevens & Horton, for appellant.
The defendant was not guilty of negligence.
The plaintiflE was bound to prove that Ephraim Herman
exercised due care for his own safety. C, B. & Q. R. R. Co.
V. Damerell,81 111. 450; C, B. & Q. R. R. Co. v. Hazzard,26 111.
373; C. & A. R. R. Co. v. Gretzner, 46 111. 74; C, B. & Q. R
R. Co. V. Dewey, 26 111. 255; C, B. & Q. R. R. Co. v. Van
Patten, 64 III. 510; Abend v. T. H. & I. R. R Co., Ill 111.
202.
She failed to prove that he exercised the degree of care
that was always required by the Supreme Court when it con-
sidered questions of fact. C. & A. R. R Co. v. Gretzner, 46
111. 74; C, R I. & P. R R Co.v. Still, 19 111. 499; I. C. R R.
Co. v. Buckner, 28 111. 299; T., P. & W. Ry. Co. v. Riley, 47
III. 514; St. L., A. & T. H. R. R Co. v. Manley, 58 III. 300;
C.-& A. R R Co. v. Jacobs, 63 111. 178; T., W. & W. Ry.
Co. V. Miller, 76 III. 278; Austin v. C, R I. & P. R R Co.,
91 111. 35; C. & K W. R R Co. v. Dimniick, 96 111. 42; C,
R I. & P. R R Co. V. Bell, 70 III. 102; Chicago ife N. W. R.
R Co. V. Hatch, 79 III. 137.
• It is error to refuse to set aside a verdict that is against the
clear preponderance .of the evidence. Moyer v.*Swygert»
125 III. 268; Peaslee v. Glass, 61 III. 94; Chicago v. Lavelle,
83 III. 482; Reynolds v. Lambert, 69 III. 495; C, B. & Q. R
R Co. V. Gregory, 5S 111. 277; Crouse v. Whitelake, 15 111.
App. 384; Lincoln v. Stowell, 62 III. 84; Mooney v. People,
111 111. 388; C.,R L & P. R R Co. v. Herring, 57 III. 59;
L C. R R V.Chambers, 71 III. 519; Ricks v. Stubblefield, 12
III. App. 309; C. & A. R R Co. v. Barber, 15 111. App. 630;
Booth V. Hynes, 54 HI. 363; Southwell v. Iloag, 42 111.446;
Second District — December Term, 1890. 289
p. & p. Union Ry. Co. v. Herman.
Lofkwood V. Onion, 6^ 111. 506; Chad wick v. McKee, 18 111.
App. 646; Keaggy V. Hite, 12 III. 99; Koester v. Esslenger,
44 111. 476; Huobler v. Hoobler, l28 111. 645; A., T. & S. F.
E. E. Co. V. Snider, 127 111. 144; Stcffy v. People, 130 111. 98.
Plaintiff's first instruction is erroneous because —
1. It instructs that a failure to do certain things is negli-
gence, without proof that the failure contributed to the in-
jury. T.,^. & W. Ey. Co. V. Jones, 76 111. 311; I. & St. L.
Co. V. Blackman, 63 111. 117; G. & C. U. E. E. Co. v. Dill, 22
111. 264; C, B. & Q. E. E. Co. v. Van Patten, 64 111. 510.
2. Because it invades the province of the jury. Meyers v.
I. & St. L. E. E. Co., 113 111. 386; C, G. & H. Co. v.
O'Brien, 19 III. App. 231; C. & E. I. E. E. Co. v. O'Connor,
119 111. 586; Pa. Co. v. Frana, 112 111. 398; T. H. & I. E. E.
Co. V. Volker, 129 111. 540; C, M. & St. P. E. E. Co. v.
Wilson, 42 A. & E. E. E. Cases, 153 (111. case), 24 K E. Eep.
555.
3. It defines certain things to be negligence without ref-
erence to otlier precautions taken. G. & C. U. E. E. Co. v.
Dill, 22 111. 271.
Plaintiff's third instruction was erroneous because it only
required the jury to find that Herman exercised due care at
the time he received the injury. C, M. & St. P. E. E. Co. v.
Ilalsey (III.), 23 N. E. Eep. 1028; C, B. & Q. R R Co. v.
Colwell, 3 111. App. 545; C, B. A Q. R E. Co. v. Sykes, 1
111. App. 520; C. & K W. R R Co. v. Clark, 2 111. App.
116; I. C. R R Co. v. Wclden, 52 111. 290.
And it is no answer to the objection to this or the first in-
struction that defendant's instructions were accurate. C,
B. & Q. R R Co. V. Flint, 22 111. App. 502; Star & Crescent
Milling Co. v. Thomas, 27 111. App. 137; C. & W. L R R
Co. V. White, 26 lil. App. 586; P. it P. U. R R Co. v.
O'Brien, 18 111. App. 28; C. & K W. R R Co. v. Dimmick,
96 111. 42; I. & St. L. R R Co. v. Blackman, 63 111. 117;
C, B. & Q. R R Co. V. Harwood, 80 111. 88.
Plaintiff's fourth instruction is erroneous in that it submits
to the jury the question whether a flagman ought to have
been stationed at this crossing at the time of day the accident
You XXXIX 19
290 Appellate Courts of Illinois.
Vol. 39.] P. & P. Union Ry. Co. v. Herman.
happened, and does not limit the inquiry to the care and cau-
tion with which the particular engine was operated. Heddles
V. C. & N. W. Ry. Co., 74 Wis. 239, S. C. 42 N. W. Rep. 237;
Haas V. G. R. & I. Co., 47 Mich. 401; Houghkirk v. Presi-
dent, etc., D. & H. C. Co., 92 K T. 219; McGrath v. N. Y.,
C. & II. R., 63 K Y. 522; Beiseigcl v. N. Y. C. R., 40 N. Y.
9; Welech v. H. & St J. R. R., 72 Mo. 451; Lesan v. M. C.
R. R., 77 Me. 85; Griffin v. N. Y. C, 40 I^. Y. 34; C. &
I. R. R. Co. V. Lane, 130 111. 116.
Messrs. Sheen & Loveti and McCulloch & McCulloch,
for appellee.
No argument or citation of authorities will, we think, be
necessary to show that the statute designs to make it the duty
of every railway company to make tiicir crossings over public
highways reasonably safe, and to prohibit them from con-
structing man-traps; nor is anything more than an inspection
of the undisputed evidence necessary to show that this cross-
ing, coupled witli the combination of circumstances surround-
ing deceased at the time of the injury, was nothing less. This
makes the company chargeable with notice of the dangerous
circumstances that it constructed. R. R. I. & St. L. R. Co.
V. Hillmer, 72 111. 235. As said in the case last cited, "a
railroad company should not permit obstructions upon its
right of way near a crossing which will prevent the public
from observing the approach of trains upon the track."
Under the comfnon law, railway companies were required to
furnish suitable crossings. People ex rel. v. C. & A. R. R.
Co., 67 111. 118. And this duty was enlarged by Sec. 71,
Chap. GS of the R. S., so as to require the companies to make
and maintain their crossings and tlie approaches thereto, in
such manner as to have them "at all times safe as to persons
and property." The company constructed tl^ese buildings
and they precluded a view of the approaching trains.
Again, in the case of C, B. & Q. R. R. Co. v. Lee, Adm'x, 87
III. 460, the court says : " Here were obstructions preventing to
some extent, at least, a view of the approaching train; it was out
of time, running at a fearful rate of speed; no whistle sounded
Second District — ^December Term, 1890. 291
p. & p. Union Ry. Co. v. Herman.
or boll rung; no effort to check its rate, and no watchman
stationed at the crossing to warn persons of approaching dan-
ger. All of which are held by the opinion quoted above to
be negligence on the part of tbe company."
Quoting approvingly from a decision of the United States
Supreme Court, in that case it is said :
" It is the duty of a wagon to wait for the train. The train
has precedence of right of way, but it is bound to give due
warning of its approach, so that the wagon may stop and
allow it to pass, and to use every caution if the wagon is in-
evitably in the way. Such warning must be reasonable and
timely."
*' If an unslackened speed is desirable, watchmen should bo
stationed at the crossing. The right of precedence referred
to does not impose upon the wagon the wliole duty of avoid-
ing a collision. It is accompanied with and conditioned upon
the duty of the train to give due and timely warning of ap-
proach."
At this crossing, in a populous city, the engineer qnits his
post, has the fireman back his engine, pushing the tender at a
l)igh rate of speed toward a crossing, from which to the south
and west the engine and tender were invisible. No watch is
put upon the forward end of the tender, the watchman on the
crossing is relieved from duty, and the bell, if rung, is not
so rung as to be audible to any one but the railroad employes,
and not all of them within hearing distance heard it.
Laobt, p. J. Tliis was an action in case by the appellee
against appellant to recover damages accruing to her from the
killing of her husband, Ephraifn Herman, deceased, by running
over him with a car, called a tender, attached to a locomotive
•
engine and being backed over a public crossing in the city of
Peoria, where at the same time deceased was crossing in front
of the tender. This crossing was at a place being the extension
of Junction street. This street is fifty feet wide where it ends
and the crossing appears to be a continuance of it with planks
eighteen feet long in the center between the rails. The
Bonth end of the junction building is on a lino with the north
292 Appellate Courts of Illinols.
Vol. 39.] P. & P. Union Ry. Co. v. Herman.
Bide of Junction street, leaving a space of over twenty feet
between the building and the traveled track marked by the
planks laid for the crossing. It will not be necessary to give
a detailed description of the place and the surroundings of the
crossing further than to say that it was necessary on the part
of a person approaching the crossing, especially in the absence
of a flagman, to use great care and caution to prevent injury
when crossing with a wagon and team attached, as the de-
ceased was doing in this instance. It also required a cor-
responding care on the part of the railroad to so run its trains
at that point as to prevent injury. Notwithstanding these
requirements the deceased, while crossing the railroad track
at this place, on April 7, 1888, was run over and so wounded
and injured that he soon thereafter died. As far as will be
necessary to notice the points in controversy, the acts of neg-
ligence as charged in the declaration were as follows, to wit :
That Herman was injured through the appellant's negligence
in running an engine and tender at a rapid rate of speed,
without ringing any bell or sounding any whistle or giving
any other audible signal of its approach; and without keeping
any proper >ookout and without having any flagman at said
crossing to warn persons of danger. It is claimed by appel-
lant that none of these charges were properly proven. Es-
pecially is it insisted that it was not proven that no bell was
rung or whistle sounded at this crossing, but to the contrary
the bell was rung and the whistle sounded at the approach
of the crossing. It is also insisted that the evidence over-
whelmingly shows that the engine was not being run at a
rapid or dangerous rate of speed while approaching the cross-
ing. It is further insisted by appellant that they had the
proper lookout; that the engineer was standing on the front
end of the engine (the rear end as it was backed toward the
crossing) looking back over the crossing between the building
and the engine and had as good a view as he would have had
if he had been in the cab; that the fireman was in the cab
on the side next to the building, keeping a careful lookout over
the crossing at the time of the approach. Appellant claims
tlie only point on whicli there was much contention before
8ecx)nd District — December Term, 1890. 293
«■ ' ■ > ■ ■ . II
p. & p. Union Ry. Co. v. Herman. <
tlie jury, was that a flagman should have been stationed at the
crossing at the time, and that the accident taking place after
six o'clock p. M., and there being very little travel over the
tracks, a flagman was not needed. The record shows further,
that the city of Peoria in its grant of privilege had reserved
and stipulated that such companies sliould consent to the ap-
pointment of as many policemen as the city council of the city
of Peoria might deem necessary for the protection of the
public, the compensation therefor to be paid by the railroad
companies. The ma3'or was empowered to make the appoint-
ment and in this iiianner the city assumed control of the ap-
pointment of all flagmen and determined when and where
they were needed and what compensation they should receive.
One John Flood was appointed by the mayor for this station
and was acting as flagman at the time, and the hours desig-
nated for duty at this station by the mayor were from seven
in the morning until six in the evening, and that he was under
the control of the mayor and not of the appellant. Flood
was on duty the day of the accident until six in the evening,
when he left, as was his custom, and at the time of the acci-
dent there was no flagman, and appellant insists that none
was necessary, there being but little travel at the time. It
was also a contested question whether the deceased exercised
due care for his own safety while approaching the crossing,
appellant insisting that appellee failed to prove he did so,
but on the contrary failed to keep a lookout for a passing
engine as he should have done while approaching the cross-
ing. We will not undertake, in this case, to pass upon the
question of the weight of evidence or to decide whether it
was sufiicient to support the verdict of the jury; sufiice it to
say that it was sufficiently close and contradictory to require
of the court below to give proper and accurate instructions
to the jury. This, it is insisted by appellant, was not done,
and he points out as error the giving by the court of ap-
pellee's first, third and fourth given instructions. The nec-
essary parts of the instructions complained of to raise the
questions sought to be decided, are as follows:
The first instruction: **If the jury believe from the evi-
294 Appellate Courts of Illinois.
Vol. 39.J P. & P. Union Ry. Co. v. Herman.
dence that the ringing of a bell or the sounding of a whistle
or the keeping of a lookout for persons about to cross said
tracks or the keeping of a flagman at said crossing, were
reasonable precautions to be exercised by the persons in
charge of such enginep with reference to the safety of such
persons, then a failure to use such reasonable precautions
would be negligence on the part of the persons so operating
such engir.rc.''
The tiiird instruction : *' If the jury further believe from the
evidence that at the time of receiving such injury the said
Herman was in the exercise of reasonable and ordinary care
in respect to his own safety and that the persons in charge
of and operating the said engine were guilty of negligence
in manner and form -as charged in the declaration and defined
in these instructions, and that by reason of such negligence
the said Ephraim Herman was struck and killed, then the
plaintiii should recover," etc.
The fourth instruction : "And if the jury believe from the
evidence that such flagman was reasonably necessary for said
purpose (the reasonable safety of those traveling over tlie cross-
ing) at the time, to make such crossing reasonably safe, then,
under the law, the presence of a flagman employed by the
city up until just before the injury occurred, would not release
the defendant from its duty to provide such flagman upon
that crossing at the time of the injury, provided the appel-
lant had notice that their city flagman usually quit his station
before the time of day when the injury occurred."
We think the lirst and third instructions were errone-
ous. The first instruction holds tliat if it was a reasonable
precaution to be exercised by the persons in charge of
the engine to keep a flagman at the crossing, then a fail-
ure to do so would be negligence. It will be observed
that this instruction does not base the keeping of flagmen
at the station as a necessary reasonable precaution to pre-
vent injury to those crossing, which, we think, to make the
instruction good, it should have done. It might be a rea-
sonable precaution and one very proper and appropriate to
take and yet not be necessary. Very many things might be
done reasonably to prevent injury and yet not be necessary.
Second District — December Term, 1 890. 295
p. & p. Union Ry. Co. v. Herman.
And if not necessary it would certainly not be negligence to
omit them. If other measures could have been taken equally
eflfective to protect persons crossing from injury from any ap-
proaching train, then the keeping of flagmen would be unneces-
sary-although it might be very reasonable to keep one. It
would not be proper to hold that the failure to keep a flag-
man was negligence unless, under all the evidence and circum-
stances in the case, the injury would result without it; then it
would be necessary, and not to do so would be negligence, and
in case injury was tlie result of such failure then a recovery
might follow. Wlien we read the first instruction, which wo
have noticed above, in connection with the third, which tells
the jury that if the person in charge of and operating said en-
gine in the manner as charged in the declaration and defined
in the instructions, the recovery would follow, we at once see
how vicious and injurious the improper definition of what is
negligence, as defined in the first instruction in regard to keep-
ing the flagman, would be. The two instructions taken to-
gether in such form, we tliink, would be misleading. It could
not properly be said, as supposed in the third instruction, that
by reason of the negligence in not keeping a flagman when it
was not necessary to protect the deceased, that the injury
would or could result from such omissions.
In such case the injury might have resulted from some other
cause, cither from decifased's own negligence or that of the
appellant in not carefully approaching the crossing. Tlie fail-
ure to keep a flagman at a crossing by a railroad company is
not negligence ^^r se, but if at all, only in connection and on
account of other conditions which may be shown to exist. Itis
not a statutory duty and not made by law a negligent act like
many statutory requirements. In this connection we will con-
sider the objectionjmade to the fourth instruction. It is objected
to this instruction that it left the jury to determine whether
the reasonable safety of the traveling public required the de-
fendant to keep a flagman at the crossing at the time of day
the accident happened; and if it did the jury were told in sub-
stance the defendant would be liable for a failure to have a
flagman there. We suppose counsel mean if injury resulted
296 Appellate Courts of Illinois.
Vol. 39.] P. & P. Union Rj. Co. v, Uerman.
in consequence of Bucb failure. Nothing is said about re-
covery in the instruction, however, but that may be predicated
on other instructions in connection with this one. It is argued
that ap|>e11ee might show the absence of the flagman as part of
the surroundings — as one of the incidents by which the care
required in managing the train might be determined, but not
in general as a legislative necessity. Appellant quotes a num-
ber of authorities from other States and one from our own in
support of the doctrine.
In the case of Heddles v. C. & N. W. Ry., 74 Wis. 230, the
court say: '^So that the question is never whether there
should have been a flagman or ought to have been one stationed
at the crossing, but whether, in view of his presence or ab^ence
the train was moved with prudence or negligence i " In Ilaas
V. , 47 Mich. 401, the court says : " It would, no doubt,
liave tended to the security of travelers at this point, but
there is no statute requiring it and the judiciary can not
establish police rules on their own judgment where the Legis-
lature has apparently considered none essential." In the case
of Houghkirk v. President, etc., D. & II. C. Co., 92 N. Y. 219,
the court held tliat '^A railroad com{)any is not bound, and owes
no duty so to station flagmen, and negligence can not /be
predicated of an omission." The Supreme Court of our own
State in the case of C. & I. R R. v. Lane, 130 111. 116, in com-
menting on this subject, says: "Although tliere was no ordi-
nance requiring a flagman to be placed at the crossings, yet
we think the fact that none was there was properly allowed
to be shown to the jury as one of the existing circumstances
attending upon the alleged injury. The absence of a flag-
man was not negligence, yet such absence, in connection with
proof of the condition of things with respect to popula-
tion, travel and otherwise in that particular locality, would
shed light upon the question of the care and caution on the
part of appellant in running its trains as the Fafety of the
public would reasonably require." In C, B. & Q. R E. Co.
V. Perkins, 125 111. 127, the court, in speaking of the question
of the rights of allowing a plaintiff to prove that no flagman
had been stationed at the crossing, eays: "If a railroad com-
Second District — December Term, 1890. 297
P. & P. Union Ry. Co. v. Herman.
pany in the running of its trains, accept what tlie Legislature
might prescribe, the position of counsel might be well taken,
but such is not the case. A railroad company in the running
of its trains is required to use ordinary care and prudence to
guard against injury to the person or property of those who
may be traveling upon the public highways and are required
to cross its tracks, whether required by the statute or not.
The fact that the statute may provide one precaution does
not relieve the company from adopting such others as
public safety and common prudence may dictate. Shober v.
St. P., M. & Minn. R. R Co., 28 Minn. 107.
From the last case cited it would appear that while an
action can not be predicated directly on -the failure to keep a
flagman at a crossing, ""and consequent injury, it may be based
upon the failure of tlie railroad company to approach the
crossing with due care and caution, and the failure of the
company to keep a flagman at the crossing; or any other omis-
sion may be shown by way of specifications of the cause of
such failure. And if from all the surrounding circumstances
it appears that the doing of any particular thing is necessary to
secure the safety of the people crossing the tracks, then the
raih-oad company would be required to do that thing. It is
true tlie railroad company might adopt measures to secure
the safety of the public equally effective with the stationing of
a flagman at a crossing, and if it did so and made the flagman
unnecessary, then it would not be required to have a flagman,
and no injury in such case could result for the want of a flag-
man. In view of the decision, while the fourth instruction
may not be logically correct, we can see no such error in it as
would be likely to mislead a jury, and we can see no cause for
reversal in the giving of that instruction. In addition the
declaration specifies as a cause of action, the failure to keep
a flagman at the crossing. Another point is made on the
third instruction and that is, that the deceased was only
required to use reasonable and ordinary care in respect to his
own safety at the tiine of receiving the injury. This part of
the instruction is claimed to be misleading in not requiring
the deceased to use such care while he was approaching the
298 Appellate Courts of Illinois.
Vol. 39.] County of Du Pasre v. Martin.
crossing, as well as at the very moment of receiving the
injury. This point is not a new one in this State. It has
«
often been held by the Appellate Court as well as the
Supreme Court, that such an instruction is erroneous, as the
jury might understand that the deceased was not required
to exercise any care for his own safety except at the moment
of receiving the injury.
We cite the following cases which clearly support the
claim : C, M. & St. P. R. R. Co. v. Halsey, 133 111. App. 248;
C, B. & Q. V. Caldwell, 3 111. App. 545; Same v. Sykee, 1
111. App. 120; C. & N. W. V. Clark, 2 111. App. 116; I. C. R.
R, V. Weidon, 52 III. 290. If the writer hereof were decid-
ing the case for the first time he would not feel disposed to
construe the word " time " as it appears in the instruction in
so limited a sense as to mean the word "moment,'' but would
rather be disposed to hold that it meant the entire occasion
of the accident — as well the approach to the crossing as the
very moment of the accident; but we feel the question is too
well settled b}' the decisions to allow of a change. We see
no error in the giving of appellee's second instruction. For
the errors above indicated the judgment of the court below
will be reversed and the cause remanded.
lieoersed and remanded.
30 208!
HZ* eo7|
I 30 m!
40 42
30 208
.S-£! The County of Du Page
39 898
74 412 V.
Henry H. Martin et al., Commissioners.
Mandamus — Statutory Right of Town to Reimburse from County for
Erpenses Incurred in Bridge Building — Emergency — Amendment of
Record of Town Clerk.
1. -The commissioners of higrbways have the right to control the amend-
mont of a record according to the fact, and to order the clerk to make the
nuicndment accordingly; and when the record is once amended in a proper
and legal manner, it has the same force and effect as though originally made
Second District — December Term, 1890. 299
County of Du Page v. Martin.
as amended, and can no more be contradicted by parol than any other law-
ful record.
2. Upon an application by a town board of road commissioners to the
board of county supervisors for the payment by the county, under Sec. 19,
Roads and Highways and Bridges Act, of one 'half the expense of the con-
struction of a bridge, the supervisors must not refu^ the application
becau'ie tbere is no formal proof of the facts alleged in the petition; but the
petition, if it state the jurisdictional facts, with the affidavits and ebtimates,
constitutes a pritna facie case. If the supervisors have doubts as to the
alleged facts, it is their duty to investigate.
3. In a mandamus proceeding by the commissioners against the county,
the court may receive evidence that was not before the supervisors.
[Opinion filed August 3, 1891.]
Appeal from the Circuit Court of Du Page County; the
Hon. 0. W. Dfton, Judge, presiding.
This was a petition for a writ of mandamus filed in the Cir-
cuit Court, February 21, 1888, by appellees against appellant,
seeking to compel the board of supervisors of Du Page County
to appropriate to the appellees, as tlie commissioners of high-
ways of the town of Winfield, the sum of $1,081.60, one-half
the expense of constructing a bridge and its approaches across
the Du Page at Gary's Mills in said township. By stipulation
the cause was submitted to the court for hearing in vacation,
in Chicago, at chambers. By the agreement the jury was
waived and the issues submitted to the court. The demurrer
was overruled, the answer filed, and the court heard the evi-
dence and decided the cause in vacation. May 15, 1890, as of
the September term, 1889. In vacation after the March term,
1890, the court decided the cause and filed judgment in the
court, granting the prayer of the petition and ordering that a
peremptory writ of mandamus issue against the board of Du
Page County, ordering them to appropriate from the county
treasury a sum sufiicient to meet one-half of the expense of
the bridge work mentioned in the petition, amounting to the
sum of $1,081.60, for the use and benefit of the said town of
Winfield, for the purposes and in the manner provided by law.
The petition, which was fully supported by the proof,
showed thai there was a public highway running from the
300 Appellate Couets of Illinois.
Vol. 39.] County of Da Page ▼. Martin.
village of Turner to the village of Warrenville across the Du
Page river at a place known as Grary's Mills; that the road
was a pnblie road and subject to the commissioners of high-
ways; that on or about the eighth day of February, IbST,
the bridge on the public highway across said river at Gary's
Mills was, in consequence of high water, washed away and
the river on said road at said point was thereby made
impassable; that in consequence of the destruction of said
bridge at said point it became necessary to construct a new
bridge at said place, together with the approaches thereto,
and that the town of Winfield was responsible for the saine^
that the cost of the necessary bridge and the approaches
would be and is more than twenty cents on the $100 of the
latest assessment roll of said town, and that the levy of the
road and bridge tax for said current year in the said town is
for the full sum of sixty cents and more on eacli $100 allowed
by law for the commissioners of said town to raise, the major
part of which was needed for the ordinary repairs of roads
and bridges in said town, and that all the other facts neces-
sary in order to entitle the commissioners in said town to aid
from the county, as provided in Chap. 121 of the Revised Stat-
utes of Illinois, existed at the time said bridge was destroyed
and still exists. The petition then shows that on the eighth
day of March, 1887, the petitioners as such conjraissionerb
made a very careful estimate of the proJ^able cost of building
a new bridge and the approaches thereto at such a place, and
attaclied thereto their affidavits that the same was necessary,
and would not be made more expensive than was needed for
the purpose desired, and thereupon filed the same with the
county clerk of §aid Du Page County, and i)resented it to the
board of supervisors of 6*id county regularly in session.
Their petition to the board, estimates and affidavits in sub-
stance were as follows: The petition represented that a
bridge needs to be built over the Du Page river at the place
mentioned in the above petition, and that the town of Win-
field was wholly responsible; that the total cost of building
the bridge would be about $2,300, which sum will be more
than twenty cents on the $100 of the latest assessment roll of
Second District — December Term, 1890. 301
County of Du Page v. Martin.
eaid town, and that the levy of the road and bridge tax for
tlie present year in said town was for the full amount of sixty
cents on each $100 allowed by law for the commissioners,
the major part of which is needed for the ordinary
repairs of roads and bridges, wherefore the commissioners
of highways thereby petition to make an appropriation
from the county treasury for a sum of money sufficient
to meet one-half the expenses of the said bridge. To
said petition to the supervisors was attached an estimate of
the commissioners of the probable cost of the bridge, sworn
to by them. The petition shows that the board of supervisors
rejected the petition for various reasons set up by them,
such as the reasonable cost of the bridge would not exceed
the required twenty cents on the $100, last year's vahia-
tion of said town; that the commissioners did not levy the
required sixty cents on the $100 as required by statute
referred to, and that a sixty-cent levy would not be needed
for the ordinary repairs of the roads in said town, nor a major
part of it. The petition for mandamus shows that an emer-
gency existed for the immediate building of the bridge on
account of the destruction of the old one, and that the super-
visors would not be in session for several months, and the
commissioners proceeded to construct the same and completed
it March 1, 1S87, at a cost of $2,163.21, which was imme-
diately thereafter paid by the commissioners. Therefore a
supplemental petition was filed with the county clerk July 24,
1887, and the same presented to the board of supervisors
then in session. This petition was supplemental to the former
one, setting up the facts as to the emergency in detail, and
the manner of letting the coutract for the construction of the
bridge, and tlie costs of the same in detail, which was duly
verified by the commissioners. This petition to the board of
supervisors, as the petition for mandamus shows, was referred
to a committee of three of the board of supervisors, who
reported September 13, 1887, that it should be rejected for
the following reasons :
1. That no emergency existed justifying said commission-
ers in constnicting said bridge before the board had been
appealed to for aid.
302 Appellate Courts of Illinois.
Vol. 39.] County of Du Page v. Martin.
2. That the amount alleged to be the contract price and
the amount alleged to have been paid out and expended was
more than was necessary for the purpose.
3. That the major part of tlie taxes levied, referred to in
the petition, was not needed for the ordinary repairs on the
roads and bridges as alleged.
4. For other reasons not enumerated and other failures to
comply with the law, we recommend the petition be not
granted.
This report was approved by the board and the prayer of
the petition and the supplemental petition denied. The peti-
tion then reiterates the jurisdictional facts entitling the appel-
lees to the relief sought and prays for the writ of mandamus.
The bill of exceptions shows that the various facts were true
as alleged in the petition. Clinton J. Nettnorton, clerk of
Winfield township since April, 1889, and w^ho succeeded
Charles P. Stark, who was dead, identified the records kept by
the town clerk of the town.
It was shown by the records of the town clerk, that at the
annual town meeting of the town of Winfield in April, 1886,
the road and labor system was adopted in said town, and
that the load and labor tax of 1886-7 was levied at forty cents
on the one hundred dollars real estate and porsonal property
liable to taxation, and it was shown by the records of the
board of supervisors that it had levied twenty cents on the
one hundred dollars valuation. The records of the commis-
sioners of highways on page 396 were read in evidence, which
showed that at a meeting of the commissioners, February 19,
1887, it was decided "to build an iron bridge in place of the
one swept away" at Gary's Mills, and the legal notices inviting
bids for the construction of the bridge were proposed and
afterward posted and recorded. Then the record of a meet-
ing of the commissioners of highways held at the bridge site
at Gary's Mills for the purpose of letting the contract of
building the bridge held March 1, 1887, was introduced, and
in connection therewith an amended record was read and
inserted on the same page before the record of the bridge con-
tract, which shows that the board at the same meeting found
Second District — December Term, 1890. 303
County of Du Pnpre v. Murtin.
tlmt the immediate buildinaj of the bridge in question was
necessary, and a delay in so doing detrimental to the public
interest, and the cost of such new bridge was more than
twenty cents on the one hundred dollars on the latest assess-
ments of said town, and the levy of the road and bridge tax
for that year was for the full amount of sixty cents on the one
hundred dollars, allowed by law for the commissioners to raise,
and the major part of which was needed for the ordinary re-
pairs of roads and bridges, and it was unanimously voted that
the bridge be immediat3ly built as provided by law, and that
aid be asked of the county board as provided by statute. It
was conceded by petitioners that the above part of the record
last recited was inserted on the 16th day of September, 18S9,
pursuant to a vote of the commissioners to correct said record,
which record of the order to correct was read, and shows that
at a meeting of the commissioners of highwaj/sof the town of
"Winfield, duly called and held on the 16th day of September,
1889, C. D. Clark was appointed clerk pro tem,^ the clerk
being absent from the county, and thereupon a motion was dulj'
and nnanimouslv voted that the minutes and record of the
previous meeting of the board be amended and corrected to
correspond with the fact by inserting the following on page
398 before the record of the bridge contract. The bridge
contract was conceded. Their record showed the cost to be
^2,163.21, and an order directing the clerk to employ counsel
to make application to the board of supervisors for one half
the costs of bnilding the bridge.
Messrs. John H, Batten and L. C. Cooper, for ajipellant.
Mr. Elbert H. Gary, for appellees.
Lacey, p. J. The right to maintain this action by appellees
is claimed to exist and arise under Sec. 19 of "Roads, Higli-
ways and Bridges Act," in force July 1, 1883, approved June
23, 18S3, Session Laws 1883, page 142.
The section is as follows, to-wit :
" When it is necessary to construct or repair any bridge
304 Appellate Courts of Illinois.
Vol. 89.] County of Du Pasre v. Martin.
over a stream, or any approach or approaches thereto, by
means of an embankment or trestle work on a pnblic road in
any town, on or near to, or across the town line,'in which work
the town is wholly or in part responsible, and the cost of
which will be more than twentv cents on the one hundred dol-
lars on the latest assessment roll, and the levy of the road and
bridge tax for that year in said town was for the full amount
of sixty cents on each one hundred dollars ($100) allowed
by the commissioners to raise, the major part of which is
needed for the ordinary repairs of roads and bridges, the com-
Tnissioner may petition the county board for aid, and if the
foregoing facts shall appear, the county board shall appropi*i-
ate from the county treasury a sum sufficient to meet one-half
of the expenses of the said bridge or ^ther work on condition
that the town asking aid shall furnish the other half of the
required amount. * * * Provided^ however, that before
any bridge or approaches contemplated as above shall be con-
structed or repaired under the provisions of this section, the
commissioners shall make a careful estimate of the probable
cost of the same and attach thereto their affidavits that the
same is necessary and will not be made more expensive than
is needed for the. purpose desired; and such affidavit and
estimate shall be filed with the petition. Provided^ that in
case of some emergency arising from the sudden destruction
or serious damage to a bridge or its approaches, wlien delay
in repairing or rebuilding would be detrimental to the pnblic
interest, such petition to the county board may be presented
during the progress of the work or after its com|)letion, and
if the facts appear as contemplated by tliis section, then the
county board shall appropriate one-half of such cost, with
like conditions that the town pay the other half."
It appears from the record in this case, the appellees, as
commissioners of highways, soon after the 8th day of March,
1887, petitioned the board of supervisor for the required one-
half aid for building the bridge over the Du Page river at
Gary's Mills, in which they showed the necessity of the bridge
at that point, and that the town of "Winfield was wholly
responsible for building it; that the point over the said stream
Second District — December Term, 1890. 305
County of Du Page v. Martin.
wliere the contemplated bridge was to be built was a part of
one of the public highways of said town. They also showed
that the total cost of the said bridge would be about the
sum of twenty-three hundred dollars ($2,300), according to
certificate ojf the estimate of the cost of the said bridge,
signed by the commissioners and verified according to the
statute by the said commissioners, showing that the said cost
was necessary and that the same would not be made more
expensive than was needed, which estimate and aflidavit was
filed with the petition. The petition also showed that the sum
necessary to build the bridge would be more than twenty cents
on the $100 valuation of the latest assessment roll of the said
town, and that the levy of the road and bridge tax for that
present year was for tho full amount of sixty cents.
In a supplemental petition to the appellant the appellees
set up and showed by the necessary averments that an
emergency arose on account of the destruction of the old
bridge for the building of the new bridge across the river at
the point named, and that on the 8th day of March, 1887,
they contracted in the proper way for building a new bridge,
and that it had been completed at a cost of $2,163.21. But
the appellant's board of supervisors rejected the petition and
the supplemental petition for the reasons shown in the state-
ment of the case. As will he seen by the same statement, the
appellees, the commissioners, made all the jurisdictional find-
ings as an organized board and in the manner provided for in
the statute to entitle them to the aid from appellant claimed
by tliem, including the proviso respecting the emergency, to
authorize the building of a bridge prior to the granting the
aid by the board of supervisors, and these findings were intro-
duced in evidence at the hearing of the mandamus in the
court below, as duly entered in the records of the town kept
by the clerk thereof. The appellant, as we gather, makes no
objection to the record of the town clerk as it appeared at the
trial, except that it was improper for the commissioners to
order the amendment of the town clerk's record, and for it to
be made showing the existence of the emergency to build the
Vou XXXIX 20
306 Appellate Courts of Illinois.
Vol. 39.) County of Du Page v, Martin.
bridge prior to the granting the relief asked for of the appel-
lant. It is insisted by counsel for appellant that it is neces-
sary for the highway commissioners as an organized body to
takeoflScial action on every material matter entitling them to
relief, and that such official action can only be shown by the
record which the law requires them to keep of their proceed-
ings, citing the case of The People v. Madison County,
125 111. 334. The above case holds, concerning the conditions
upon which relief may be granted from a county to a town,
that " the acts are by law made jurisdictional and without
their concurrence, the county board is without power to appro-
priate money for the purposes stated." And the Supreme
Court further deciding in the said case makes use of this
language :
"The determination of these jurisdictional facts is left to the
commissioners of highways. Acting as alone they have the
power to act, together and as a board, at a meeting of
the board, they are to determine," etc., of which determina-
tion, the court adds, they are required by tlie act to make
and keep a record. And it appears the court held in that
case that one of these facts to be thus founded and recorded
in cases whore an emergency requires the building of abridge
befoi'e the asking of aid was the existence of the emergency-
It will be seen that these objections have no force in this case
unless the amendment of the record was improperly made;
for, admitting that the amendment was proper, every fact
existed requiring the supervisors to vote the appropriation
sought. The fact that the amendment was not of record at
the time that appellees' petition was rejected would not be
good grounds for the refusal of the petition. The super-
visors or the report of the committee do not base the rejec-
tion of the petition upon the facts, or even as a ground of
objection, that the finding of the existence of an emergency
by the appellees was not of record. If such objection had
been made it would no doubt have been obviated at once by
the amendment of the record. The petition presented to the
board of supervisors by the appellees sliowed plainly that
the building of the bridge prior to presenting the petition
Second District — December Term, 1890. 307
County of Du Page v. Martin.
was justified by the 6inergency caused by the destruction of
the bridge by high water. Of these facts the board of
supervisors must have been fully informed, as it was a mat-
ter of public notoriety, and it does not appear that they even
called for the record of the finding of this emergency by the
commissioners; it is not necessary, as we understand the law
that the board of supervisors may properly refuse to make
the appropriation because there is no formal proof of the
facts alleged in the petition. Such matters thus presented
by the towns through their commissiouei-s acting as public
officers make out a pr-iyna facie case. If the .supervisors
have any doubts as to the truth of any of the allegations in
the petition they should investigate the matter. If they had
done so in this case they would no doubt have discovered the
true condition of affairs, and the record would have been
complete and to their satisfaction. It follows from this that
in a mandamus proceeding the court may receive evidence
which was not offered before the board of supervisors.
Such a defense as this is unsubstantial and has little to com-
mend it to favor, as was fully held in Board of Super-
visors v. Town of Condit, 120 111. 307. The next point then
we will notice is, was the amendment of the town record
allowable at the time and in the manner made ? We think
that it was properly done. "The power of the town clerk
to amend a record in accordance with the facts is derived
solely from his official character, and it does not depend upon
the permission of the court in which it is offered as an instru-
ment of evidence, nor inquiry into the truth of it as origi-
nally made or amended." The town clerk may amend
according to the facts. The Boston T. Co. v. The Town of
Pomfret, 20 Conn. 589; Chamberlain v. Dower, 13 Me. 472;
Willis V. Batteville, 11 Mass. 480. If a town clerk be
temporarily absent the entries of a clerk pro tern, made by
direction of the corporate authorities are conjpetent evidence
and properly made. Hutchinson v. Pratt, 11 Vermont, 402.
In the case of Willis v. Batteville, «?^j!?ra, the Supreme Court
of Massachusetts said : "We have had frequent occasion to
perceive the great irregularity which prevails in our towns
308 Appellate Courts of Illinois.
Vol. 39.] County of Du Piige v. Martin.
and other miinicijml corporations, and the courts have always
been desirous to uphold the proceedings where no frauds or
wilful error was discoverable. It can not be expected that
in all corporations persons will every year be elected who are
capable of performing their duty with the exactness which
would be useful and convenient. We are of the opinion that
the clerk had the power to amend the record."
This doctrine was adhered to in Hartwell v. Town of Lit-
tleton, 13 Pick. 229. We will take occasion here to say that
these words are very apt, and the rules there laid down are
})eculiarly applicable to town officers and other h'ke officers
in this State, and in our judgment will be found quite nec-
essary in following out the strict rules of the law pertaining
to town clerks and highway commissioners, laid down in The
People V. Madison Co., supra. If every official act of the
highway commissioners must be recorded at length and in
methodical form, frequent amendments will no doubt be
required to uphold the rights of the town and the people.
We are of the. opinion also that the commissioners of high-
ways have the right to control the amendment of a record
according to the facts, and to order the clerk to make the
amendment accordingly. And when records are once amended
in a proper and legal manner, they should have the same
force and effect as though originally made and amended, nor
can they be contradicted any more by parol than otlier lawful
records. Appellees' attorneys have furnished us authorities
more or less applicable to the questions of the rights of
amendments herein discussed, and their force and eflPect, which
we cite as follows: Thatcher v. Maack, 7 111. App. 635; Jef-
ries V. Kudolff, 73 la. 60; Johnson v. Donnell, 15 III. 97;
Morris v. Trustees, 15 111. 269; Madison Co. v. Kutz, 63 111.
65; Bliss V. Harris, 70. 111. 343; Brennan v. Shinkle, 89 111.
604; Ames v. Snyder, 69 111. 376; Mott v. Keynolds, 27 Vt-
206.
The record when amended operates nunc pro tunc and
shows that the action of the commissioners took place at the
proper time and manner as shown by the amended record, and
this can not be contradicted by parol evidence. Therefore
Second District — May Term, 1891. 309
Schriner v. Peters.
the court properly ruled in rejecting all evidence in regard to
matters required to be of record and which were of record.
We having now decided that the amendment of the record
was proper as made, all the objections of counsel for appel-
lant to the judgment in this case fall to the ground. "We
now find that the appellees were clearly entitled, according to
the statute and the decisions of our Supreme Court, to one-
half of the cost of building the bridge in question, from the
appellant, and that the appropriation asked for ought to have
been made long ago. Seeing no error in the record the judg-
ment of the court below is affirmed.
JudgTYient affi7*med*
JuDGB Upton, having tried the case in the court below, took
no part in this decision.
Peter Schriner
V.
John Peters.
Contracts — Action for Service Fee of Stallion — Count er-claim-^Con^
tract Payable in Trade — Demand and Refusal to he Shown.
A contract, made payable in trade, without time or place for pay-
ment, is payable on demand or within a reasonable time, and at the resi-
dence or place of business of the promisor, and before the promisee is
entitled to a money judgment against the promisor for non-performance,
he must show a demand on his part and a refusal on the part of the prom-
isor.
[Opinion filed August 3, 1891.]
Appeal from the Circuit Court of Carroll County; the
Hon. John D. Crabtree, Judge, presiding.
Mr. J. M. Hunter, for appellant.
Mr. George L. Hoffman, for appellee.
39 309
46 5I2|
310 Appellate Courts of Illixois.
Vol. 39. J Schriner v. Peters.
IIarker, J. This suit was commenced by appellant before
a justice of the peace, to recover $15 for the service of a
stallion for the season of 1889. A judgment beino: recovered
for that sum, ap])ellee prosecuted an appeal to the Circuit
Court, where a trial resulted in a verdict, and judgment for
$30 in favor of appellee on his counter-claim against appel-
lant. There was no denial of the horse's services for 1889,
and the entire contention was over the counter-claim.
It appears from the evidence that in an exchange of lands
made by the parties to the suit in May, 1888, appellant wjis
to pay appellee a difference of $145 — $100 in cash, and $45 in
the service of his stallion at the rate of $15 for each marc
served. Appellant testitied that the service was to be with-
out the insurance of foal, and appellee testified that the serv-
ice was to be with the insurance of foal. No time was
fixed for the service, but three mares of appellee were served
by the appellant's horse in 1888, which appellant claims dis-
charged liis obligation. Neither service resulted in foal, and
appellee claims that he was entitled to other and further serv-
ice of the horse until three foals should be obtained. The
only service that was fruitful was that of the mare served in
1889, the one for which appellant brought suit. ' The jury
evidently adopted appellee's contention that the contract was
to be service with the insurance of foal, and as they ren-
dered a verdict of $30 in his favor, considered the obligation
of appellant discharged only to the extent of $15. If such
was their view of the contract, their verdict should have been
limited to a finding for ajipellee without damages against
appellant. As the contract or undertaking of appellant was
the performance of service, and not the payment of money,
and no time was limited within which the service was to be
performed before a])pellee would be entitled to a judgment,
he should show that he furnished the means of performance
by bringing his mare to appellant's horse within a reasonable
time, and appellant refused the service,
A contract payable "in trade" without time or place for a
payment, is payable on demand, or within a reasonable time,
and at the residence or place of business of the promisor; and
Second District — May Term, 1891. 311
McGillis V. Willis.
before the promisee is entitled to a money judgment against
the promisor for non-performance, he must show a demand
on his part and a refusal upon the part of the other. Rice
V. Churchill, 2 Denio, 45; Lobdell v. Hopkins, 5 Cowen, 516;
Vance v. Bloomer, 20 Wend. 196; Woods v. Dial, 12 111. 72;
Wehrl V. Rehwoldt, 107 III. 60.
Recognizing this principle of law, appellee insists that no
special demand was necessary because appellant had expressly
refused performance. The record will be searched iu vain
for evidence of such a refusal. The nearest approach to it
was the bringing of suit for the service of the horse in 1889.
Indeed it appears from appellee's own testimony, and that of
bis witness, Reuben Peter, that as late as 1889 appellant was
insisting upon appellee bringing over his mare that he might
perform his part of the contract. The appellee's third instruc-
tion entirely omitted the consideration of demand and refusal,
and the giving of it was for that reason, error.
Mtvefaed and remand^.
W. A. McGlLLIS ET AL.
V.
Austin Willis.
Drainage — Di/ifrief Commissioners — Action against for Damages
Resulting from the Building of a Z^am—Rea Adjudicata— Quasi Public
Corporation,
1. A drain acre district is a public, involuntary, quasi corporation, and
in the absence of special enactment is not liable for the wrongful and
unlawful acts of its agents done in the execution of corporate duties and
powers.
2. Where the drainage commi.^'sioners merely acted under the order of
the County Court in letting the contract for the work complained of and
bad no immediate supervision of its execution, they are not personally liable
for injuries resulting from the prosecution of the work.
3. In an action brought to recover damages for the overflow of plaintiff's
land, resulting from the construction of a dam, where it clearly appeared
that the erection of the dam was necessary to the feasible and economical
312 Appellate Courts of Illinois.
Vol. 39.] McGillis v. Willis.
prosecution of the work of the drainage district, it is held: That the plaint-
iff's claim for damages was, or might have been, passed upon in the asses?*-
nient of damages in the drainage proceedings, and that the matter was res
adjudicata.
[Opinion filed August 3, 1891.]
Appeal from the Circuit Court of Lee County; the Hon.
John D. Ckabteee, Judge, presiding.
0
Messrs. J. E. Lewis and A. C. Bardwell, for appellants.
The injury complained of must be presumed to have been
taken into account by the jury in assessing damages and ben-
efits. Doyle V. Baughman, 24 111. App. 614.
Statutory assessment of compensation will cover all con-
sequential damages occasioned by the construction of the
work, except such as may result from negligent or improper
construction, and for which action at law will lie. Cooley,
Const. Lim., 712 (4th Ed.).
Assessment of damages in condemnation proceedings em-
braces all past, present and future damages which the im-
provement may reasonably 'produce. C & E. I. R, K. Co.
V. Loeb, 118 111. 213; 1 Sutherland on Damages, 191; Tren-
ton Water Power Co. v. Chambers, 13 K J. Eq. 199.
The final award in condemnation proceedings is a bar to an
action for any injury which the appraisers could have legally
estimated, irrespective of their action upon claims for injury,
or even their knowledge or ignorance of its existence. They
are conclusively presumed to have performed their duty,
except in a direct proceeding to set aside the award or on
appeal. Pierce on Railroads, 177, citing numerous author-
ities.
In assessing damages for lands taken for the construction
of a canal or reservoir therein, injuries to the residue of such
lands arising from seepage or leakage should be anticipated,
and damages for the same should be included in the original
assessment, and no subsequent recovery for such injuries will
be allowed, unless negligence or unskill fulness be shown,
Denver Irrigation & Water Co. v. Middaugh, 12 Colo. 434
(21 Pacific Rep'r, 565).
Second District — May Term, 1891. 313
McGillis V. Willis.
In condemnation proceeding evidence is competent tending
to show the mode of constructing the work and the probable
manner of its use. Mix v. B. L. & M. K. R Co., 67 111.
319; Suver v. Chicago, S. Fe & C. R R Co., 123 III. 297;
Jacksonville & S. R R Co. v. Kidder, 21 III. 131.
And plans must be adhered to. Peoria & R I. R R Co.
V. Birkett, 62 III. 332; Pierce on Kailroads, 229; Chicago, S.
Fe & Col. R R Co. v. Phelps, 125 III. 489.
And the jury may take into account injury h'kely to be
done by blasting, Whitehouse v. Androscoggin R R Co., 62
Me. 208.
The proposition hardly needs to be mentioned that assess-
ment of jury unappealed from is conclusive. People v. Mey-
ers, 124 111. 95.
Where that which constitutes the actionable wrong is per-
mitted on public grounds, but on condition that compensation
be made, and the statute provides an adequate remedy
whereby the party injured may obtain redress, the inference
that this was inttnded to be the sole remedy must generally
be conclusive. So lield in many cases where land has been
taken for public use under eminent domain law. Cooley on
Torts, 652; Dodge v. Commissioners, 3 Met. 380; Pierce on
Railroads, 177.
This may not be the law when the body authorized to insti-
tute proceedings fails to do so, but where the corporation, by
following the statute, tenders to the land owner a complete
remedy, we insist he can not again have his day in court for
anything but the negligent doing of the work.
By the " Levee Act" commissioners are expressly given
full power to do all necessary work, including erection of
dams, but if the cost of the work will exceed $500, the work
must be let by contract. (Sec. 36.) It would seem that this
contemplates that the contractors shall succeed to the powers
of the commissioners in these particulars.
The drainage district is not liable for the injury com-
plained of.
It is familiar law that " unless made so by express enact-
ment, counties, townships, school districts and road districts
314 Appellate Courts of Illinois.
Vol. S9. i McGillia v. Wi.lis.
are not liable to persons injured by their agents in the execu-
tion of corporate duties or powers." Sjmonds v. Clay Countj-,
71 lil. 357.
Drainage districts are classed with these bodies in not
being required to give bond on appeal. Commissioners v.
Kel^ej, 120 111. 482.
Drainage districts are to be regarded as mere public, invol-
untary qiLOsi corporations. They have no means of raising
funds to pay damages, and their liability for the acts of officers
is no greater than that of towns, road districts, etc. Elmore
V. Drainage Com'rs, 32 III. App. 123; affirmed in Supreme
Court and reported in 135 111. 269.
Messrs. Morrison & Wooster, for appellee.
Tliecase of Doyle v. Baughman, 24 111. App. 614, cited by
counsel, throws no light on this case. It can hardly be denied
that a jury in assessing damages would take into account the
fact that dirt taken from the ditch must be deposited along
its sides, and such damages mi^st have been taken into ac-
count by the condemnation jury.
All other cases cited by counsel recite only the well known
rule of law that such damages as naturally and probably flow
from the construction of the proposed work must be taken
into account by the condemnation jury.
In Hiram Jones v. C. & Iowa R R Co., 68 III. 380, it is
said : " The amount allowed should be sufficient to cover all
the actual damages occasioned by reason of the construction of
the road, for the land taken and for all i)hysical injuries to
the resident, * * * but nothing should be allowed for
imaginary damages, or such remote or inappreciable dam-
ages as the imagination may conjure up, which may or may
not occur in the future."
The above case is cited approvingly in L. S. & M. S. Ry.
V. C. & W. 1. R R, 100 111. 30; C. B. & N. Ey. Co. v. Bow-
man, 122 111. 595.
The commissioners or jury may take into consideration all
incidental lo^i8 * * * and all damage that may be known
or reasonably expected to result from the construction and
Secqnd District — May Term, 1891. 315
McGillis V. Willis.
operation of the work. 3 Sutherland on Damages, 438; Mis-
Boiiri R R. Co. v. Haines, 10 Kas. 439; Kedlield on R'ys,
6th Ed. 304.
Only such damages as may be reasonably expected to flow
from the construction and operation of the proposed work are
to be taken into account by a condemnation jury. James Mix
V. LaFaycttc, B. & Miss. E. R. Co., 67 III. 319; C. & A. Ey.
Co. et al. V. S. & K W. E. E. Co., 67 111. 142; Carman v. S.
& I. Ey. Co., 4 Oliio St. 399.
ITarker, J. In the year 1887 Inlet Swamp Drainage
District was organized under the drainage and levee act,
approved May 29, r879, for the purpose of draining and
reclaiming some thirty thousand acres of swamp land in Lee
County. All statutory requirements as to fixing boundaries,
locating ditcher, and assessing damages and benefits to the
lands of the district were performed. The drainage commis-
sioners contracted the work of ditching as authorized by
statute. The natural outlet for the district was Inlet Creek,
which was by the plans and order of the County Court made
the main ditch. In order to fioat the dredge boats used for
removing the dirt and rock to the depth required, the con-
tractors in April, 1888, constructed a dam across this stream
about one mile below appellee's lands in such manner as to
back up the water and cause their overflow. With the excep-
tion of an occasional opening to let out the water the dam
remained until the month of August following, when it was
removed. By reason of the construction of the dam and the
consequent overflow of water the appellee claimed that largo
portions of his land had been rendered unfruitful to him that
3'ear, and brought his action on the case against the drainage
district, the drainage commissioners and contractors, A trial
resulted in a verdict and a judgment against all the defend-
ants for $263.33. Appellee based his claim for damages upon
the " wrongful " act of constructing and maintaining the dam.
A drainage district is not liable for such injury. It is a pub-
lic, involuntary, jT^flwi corporation, and in the absence of ex-
press enactment, not responsible for the wrongful and unlaw-
316 Appellate Courts of Illinois.
Vol. 39.] McGillis v. Willis.
fill acts of its agents done in the execution of corporate duties
or powers. Cooley's Const. Lim., 247; Elmore v. Drainage
Cora'rs, 135 111. 269.
The verdict and judgment against the commissioners per-
sonally were unwarranted by the evidence. Acting under an
order of the County Court they merely let the contract for
the work. They had no immediate supervision of the dam.
They took no part in its construction. If contractors in the
performance of drainage work adopt an unlawful method,
and one resulting in injury to an individual, his remedy is
against the contractors alone, unless it can be shown that the
commissioners advised or encouraged such unlawful method.
The unwarranted verdict and judgment against the drain-
age district and the commissioners personally are sufficient
grounds for reversal; but we are also of the opinion that
appellee has no legal cause of action against the contractors.
Four hundred and eighty acres of his land (including the land
overflowed) were within the district. It appears from the
evidence that a jury, as authorized by law, assessed the
damages and benefits that would result to the land from the
drainage work. Appellee appeared as an objector on the con-
firmation of the assessment, and was heard or could have
been lieard as to such damages as would naturally and prob-
* ably arise in a practical construction of the work. The evi-
dence in this case clearly demonstrates that the erection of
the dam was necessary to a feasible and economical prosecu-
tion of the work. Immediately and for a long distance above
the dam, the plans required the removal of dirt and the blast-
ing and removal of rock several feet in depth and several feet
in width for the " main ditch." To carry the machinery for
drilling and removing the rock it was necessary to have the
dredge boats floated. This could only be done by the con-
struction of a dam. If the erection of the dam was neces-
sary, then it must be presumed that when the jury in the
drainage proceedings viewed the land for the purpose of
assessing benefits and damages, they considered whether such
a dam and the consequent backing up of the water would
damage appellee's land^ and if so, fixed the amount. If, as a
Second District — December Term, 1890. 317
Luthy V. Waterbury.
matter of fact, the jury did not consider snch damages, it was
tlie privilege of appellee when he appeared as an objector to
offer evidence in every detail shown by the profiles and plats,
and demonstrate the effect, and have the damages allowed
him. He has had "his day in court" as respects 8u6h dam-
ages.
The principle of reB adjudicata embraces not only what
damages were actuall}^ determined in the former proceedings,
but also such as were properly involved and might have been
determined. Freeman on Judgments, 272; Rogers v. Ilig-
gins, 57 111. 244; Stockton v. Ford, 18 How. 418; Hamilton v.
Quimby, 46 111. 90; Enegger v. I. & St. L. R E. Co., 103 111.
456.
In this view of the case the judgment must be reversed
and not remanded.
Judgment reversed.
38 317
140s 064
Ferdinand Luthy and Charles T. Luthy, Co-
partners,
V.
James M, Waterbury and Chauncey Marshall, *
Copartners.
SalfiS — Action on Contract for Sale of Binding Twine — Construction of
— Guaranty of Quality — Provisions as to Sales by Seller to Others at
Less Price than Provided in Contract — Instructions*
1. In an action on a contract for the sale of bindinsr twine, which con-
tained a ffuaranty of the quality of the twine sold, where the vendor claimed
that the twine was not up to the guaranty, it is held: That the defendants
had received all the allowanbe in the verdict and by remittitur^ to which
they were entitled under the evidence.
2. Under a clau<«e in the contract which provided that in case of sales to
others durinjr the season at a less price than that fixed in the contract with
defendants, the defendants should be entitled to a corresponding reduction,
it is held: That the evidence failed to show that sales had beep made at a
less price as claimed.
318 Appellate Courts of Illinois.
Vol. 39-1 Luthy v. Waterbury.
3. A clause in the contract provided that should the appellees, or anoth>T
company named, sell twine daring the season at a less price than that
named in the contract, the appellees would make a corresponding reduction:
Held: That this clause did not apply toa sale already made, and second, that it
had no reference to more favorable terms given to appellants by the other
comptiny named, by way of receiving back unsold twine at the end of the
season.
[Opinion filed August 3, 1891.]
Appeal from the Circuit Court of Peoria County; the Hon.
T. M. Shaw, Judge, presiding.
This is an action of assumpsit brought by the appellees
against the appellants, Luthy & Co., on a promissory note, dated
May 10, 18S9, for $19,000, payable November 10, 1889, and
also upon au open account for $2,869.92. To this the defend-
ants oppose a plea of the general issue and two pleas of set-
off. Upon a trial by the jury the appellees obtained a verdict
for $21,798.92. The defendants moved to set aside the ver-
dict and for a new trial, whereupon the appellees entered a
remittitur for $858.92 on the verdict, and the court thereu])on
denied the appellants' motion, and rendered judgment against
the appellants for $20,939.60, from which the ap|)ellant8
prayed an appeal to this court.
It appeal's from the evidence in the case that with what the
jury allowed and the remittitur^ the appellants must have
obtained a set-off against appellees' claim of $1,622.32; but
with this set-off the appellants are not satisfied, and claim a
large amount in addition. It aj)pears that on the 4th day of
April, 1889, the appellees, residents of the city of New York,
entered into a contract in writing with tfie appellants, resi-
dents of the city of Peoria, 111., whereby the appellants agreed
to sell to appellees, binder twine at Peoria, III., Omaha, Neb.?
and various other points in the northwest, as per list attached
to the agreement, and amounting to 424,548 pounds at thirteen
cents per sisal, either white or stained ; fourteen cents for
mixed, tagged standard half and half, or standard manita;
iifteen cents for pure manila, tagged pure manila or stand-
Second District — December Term, 1890. 319
Lathy v. Waterbury.
ard maiiila, free of all charges for freight, storage, insur-
ance and other expenses until the warehouse receipts were
turned over for same to appellants, etc. The money was pay-
able by note on receipt of the invoice, one-third September
10th, one-third October 10th, and one-third November 10th,
1889.
The appellees agreed and guaranteed that the twine was in
good condition and a merchantable article, and further guar-
anteed that should the National Cordage Company or the
appellees sell twine during the season at less prices than the
above they would make a corresponding reduction on the
twine. It was further agreed that the contract should not be
considered to in any way affect the contract existing between
the National Cordage Company and the appellants. It was
further agreed that if the appellants should be in want of more
twine for that season, they were to give appellees the preference
of their future orders at above prices of corresponding market
rate at the time, for 250 tons additional twine. Prior to that
time, on the 29th day of March, 1889, an agreement had been
entered into between the appellants and the National Cordage
Company, a corporation of the city of New York, whereby the
latter agreed to sell to the second party 1,000 tons of binder
twine pn the following conditions: Prices per sisal twine to
average 500 feet per pound, thirteen and one-half cents f. o. b.
New York; prices for half and half twine to average 550 to
575 feet per pound f. o. b. New York ; prices per manila
twine to average 600 feet to the .pound, fifteen and one-half
cents f. o. b. New York. Appefllants to have privilege of
ordering twenty-five per cent of the above quantity, to be
made up out of mixture of five to ten per cent of manila, bal-
ance sisal, to average a bi)ut 575 feet per pound at thirteen and
one-half cents f. o. b. New York, special tag to be furnished
for same at the expense of appellees, * * * sixty days
credit or cash in ten days less one-half per cent, four months
extra credit if desired at six per cent per armum.
The appellees agree if they or any members of the National
Cordage Company during the season make lower prices or
more favorable terms, which would bo equivalent to lower
320 Appellate Courts of Illinois.
Vol. 39.] Luthy v. Wate rbury.
prices to any one, that a corresponding reduction would be
made to appellants on the contract. It was further agreed
that appellees should take back all twine unsold and remaining
in the second party's hands at their principal place of business
only, on or before the Istday of November next following, at
prices paid. Twine to be delivered to first party on or before
that time, in good order and without expense, at points above
designated. Prices are always to be considered f. o. b. New
York, and freights to be added to deliveries from western
mills to equalize such deliveries. The sellers agree tJiat after
their total sales this season have amounted to 12,000 tons,
that they will sell no more twine during this season of a less
price than one cent per pound advance on prices named.
James M. Waterbury, while being a member of the firm of
Waterbury & Co., was at the same time president of the
National Cordage Company, and a friendly feeling existed
between the appellees and the National Cordage Company. It
appears from the evidence that there was returned 731,100
pounds, and that there was 500,000 pounds additional not
returned. When the appellants came to settle with the
National Cordage Company, they paid them twelve and one-
half cents for sisal, twelve and one-half for mixed, and thirteen
and one-half for standard manila.
This reduction was given on this twine because there had
been a decline in the price of twine. It appears from the tes-
timony of Charles L. Luthy, one of the appellants, that the
settlement was based on the fact that there had been a reduc-
tion in the price. *
Messrs. PcTERBAUGH & P[jTERBAUGn, for appellants.
Messrs. McCulloch & McCdlloch, for appellees.
Lacey, p. J. One of the complaints made by appellants
and insisted on for cause of reversal is that the a])pellees are
liable on the contract of warranty of the good and merchant
able condition of the twine, insisting that it was not in as good
condition as warranted. It must be admitted that the evidence
Second District — December Term, 1890. 321
Luthy V. Water Imry.
to some extent tends to support the claim of appellants in that
regard, eppeciallyasto the condition of twine stored at Lisbon,
Valley City, Osnabrook and Aberdeen, but we think there was
very little evidence of any serious defects in the twine stored
at any other points, and it also appears that there were some
small sums of money due appellants for other items of ac-
counts, amounting to seventy odd dollars. As to those items,
or so many of them as the jury may have seen proper to
allow, and including the damages resulting from a breach of
the warranty as to the condition of the twine, we think all are
covered by theamoimtof the reduction in favor of appellants'
claims made by the jury and the reTnittitur entered by appel-
lees. It will not be necessary for us to go over and canvass
the evidence in detail to show that the appellant can not rea-
sonably claim on that score more than ihey have been allowed,
and indeed they might without doing any violence to the evi-
dence have been allowed less. The twine that appellants
purchased was carried over from the last year and both par-
ties must have known that it would not be in the excellent
condition of new twine; and such we think was not contem-
plated by the parties to the contract. For example, the
137,000 poundsof twine in appellants' own warehouse in Peoria
is objected to as not being up to the warranty. But as to
this twine, Charles L. Luthy, one of appellants, says in his
testimony: "I don't think the twine in our warehouse was
in good condition, but it was not as bad as it might have
been. Some of it was in bad condition. For carried-over
twine it was in fairly good condition. I think it was fairly
marketable." It will be observed, too, that the contract
price of this old twine was less by one-half cent per pound and
the cost of freight from New York than the new twine pur-
chased of the National Cordage Company in New York, and
this difference no doubt was made on account of the former
being old twine and the latter new, and therefore more mar-
ketable than the old. The same may be said of much of the
old twine purchased and stored in the Western States. There-
fore we think there is no error in the record as regards
the credits received on account of the claims above named.
Vol. XXXIX 21
322 Appellate Courts of Illinois.
Vol. 39.] Luthy v. Waterbury.
The main supposed defense to a portion of the appellees'
cause of action arises under the following clause in the con-
tract with the appellees for the sale of the twine, to wit: '' The
party of the first part hereby guarantees that should the
National Cordage Company or the party of the first part sell
twine during the season at less prices than the above, tliey
will make a corresponding reduction on this twine." It is now
insisted and was on the trial in the court below that the war-
ranty contained in the above clause in the contract failed in
this, that the appellees as well as the National Cordage Com-
pany sold twine in specific instances during the season of 18b9
at less prices than those mentioned in the contract, and that
therefore, under the guaranty, the appellants had the right
to set off such reduction against the claims of the appellees
sued on, to the same extent per pound of the twine sold as
was made during the season in other contracts, either by the
National Cordage Company or appellees. And this is the
question we will now consider.
The sales wliereby it is claimed appellees reduced the price
of binder twine are two: one made to Smith Wagon & Imple-
ment Company of Minneapolis, Minn., of 400,000 pounds of
twine, of which all was returned to appellees except 21,078
pounds, and the other was a sale of 500 pounds of twine to L.
Freeman & Company, Grand Forks, Dak., at fourteen and
one-half cents per pound for manila. There are other sales
claimed in the argument to have been made b}' appellees
w^hcrein prices were reduced below the prices named in the
contract in question, but upon examination we find no reduc-
tion, and we will, therefore, not take up our time in going
over them. There was one contract and sale made bv the
National Cordage Company in which it is insisted that the
price was reduced in various ways below that contained in
the purchase made by appellees in question, to wit, the con-
tract and sale made by said National Cordage Company to
appellants of 1,000 tons of twine of March 29, 1889, men-
tioned in the statement of the case above. We will now
proceed to consider the testimony and the law embodied in
the instructions as applicable to the facts in the above cases
of sales or supposed sales of binder twine.
Second District — December Term, 1890. 323
Luthy V. Waterbury.
The first we shall notice is the alleged sale of twine to the
Smith Wagon & Implement Company. By a reference to
the record we find there was evidence produced before the
jury by the witnesses Waterbury and Marshall, to the effect
that the 400,000 pounds of twine claimed to have been sold to
the Smith Wagon & Implement Company was in fact not
sold to it but sent in consignment to be sold on a commission
of five per cent, and that wlien a settlement was made there
was found to have been sold only 21,078 pounds of the twine
by the Smith Wagon & Implement Company and the balance
returned, and three-fourths of a cent a pound was allowed in
addition to tlie commission on a settlement with the con-
signees. If this was the nature of the transaction, the jury
being the judges of the facts so far as that transaction was
concerned, they were justified in finding that there was no
sale at less ])rices per pound for the twine furnished than was
named in the contract between appellants and appellee in
question. If the Smith Wagon & Implement Company were
the mere agents of the appellees and the transaction between
it and appellees was not an evasion intended to protect the
appellees from forfeiture on appellants' contract, then there
was no sale within the meaning of the contract, and the jury,
we think, was justified in its verdict in finding there was no
evasion. It apj^ears by the evidence of James M. Waterbury
that the three-fourth cent per pound reduction on the twine
consigned to the Smith Wagcn & Implement Company was
made because it could not make collections on the amount
sold and only on the amount sold, and this was made, not
in pursuance of any previous understanding, but in closing up
the transaction. If this be so it would not be a sale within
the meaning of the contract in question. We now come to tlie
consideration of the sale made to L. Freeman & Company of
the 500 pounds of twine made September 1, 1889. This sale
does not appear to be much relied on by counsel for appel-
lants as showing a reduction of prices as contained in appel.
lants' contract, but still it is claimed and we will consider it.
The evidence shows, or at least tends so to do, that the twine
season means that portion of the year during the continuance
324 Appellate Courts of Illinois.
Vou 39.] Luthy v. Waterbury.
of harvest, in wliicli the twine is used for the purpose of
binding sheaves of grain, and commences about January Ist
and ends about August 1st, after harvest. James M. Water-
bury and Chauncey Marshall both testify to this, and Ferdi-
nand Luthy, one of the appellants, testifies that the woi-d
"season" used in the contract "would apply to twine dis-
posed of during the year 1889. It varies some in different
parts of the country. * * * In Dakota we have binding
twine used after September 1st. Sometimes the harvest is
not over there until September Ist * * * The harvest is
generally over by September 1st. I consider the season over
when the harvest closes," etc. This sale of the 6u0 pounds of
twine was in itself a very insignificant matter, and, as we think,
the ap[>ellants failed to show that' it was made during the
season, but rather after its close, and could not possibly affect
the market of twine during the season. We suppose this clause
was inserted in the contract for the purpose of protecting
appellants in their retail or jobbing trade, and to compensate
them by reducing the purchase price of their twine for what
they would or might lose by reason of any reduction in the
wholesale price of twine by appellees or the National Cordage
Company, and in fact it was intended to put appellants on an
equal footing as respected the price of twine during the sea-
son with the other customers of appellees and the Cordage
Company, so that they might be enabled to compete in the
retail or wholesale market with any other purchasers of twine
from them. Considering the sale of the 500 pounds of twine
to L. Freeman & Co., and the time and circumstances, it
would seem to us that it could not be considered or held to
be a substantial breach of the contract, or in other words, a
selling during the season at less prices than those mentioned
in the contract, and the jury was justified in its verdict in that
respect.
We will now come to consider the last complaint, and that
is the supposed reduction of the prices in the National Cord-
age Company's contract with appellants, dated March 29, 1889,
set forth in the statement of the case herein. After due con-
sideration of the matters we are of the opinion there could
Second District — December Term, 1890. 325
Luthy V. Water bury.
be nothing claimed on that account. It is claimed bj appel-
lants' counsel that after the close of the season in the month
of February, 1890, the Cordage Company reduced the price
of twine all around on an average of one cent per pound on
the contract with the appellants; that this was done under an
indefinite promise as to amount made to appellants in July,
1889, and was done because, as the Cordage Company informed
them, they were reducing prices, and it was a voluntary
matter on the part of the company and not upon any demand
made by the appellants. For this reason it is insisted that the
price in appellants' contract should be reduced correspond-
ingly, and further, inasmuch as by the terms of the contract
with the Cordage Company with appellants, the said company
was to buy back all the twine unsold at the end of the season
at the contract price, and the contract with appellees did not
so provide; that that was more favorable in its terms to the
amount of one cent per pound on the price of the twine, and
hence they should be allowed a like reduction on the twine
purchased of appellees. It does not seem to us that this
claim can be sustained, or that tlie contract with appellees
will bear any such construction. The contract with the
National Cordage Company was dated four days prior to the
contract with appellees, and it was known to both parties at the
time appellees' contract was made, that such contract had
been made, and what its terms were, and especially that it
provided for the return of the unsold twine. Appellees' con-
tract did not so provide. If appellants' contention be correct,
then the moment appellees' contract was executed, notwith.
standing it had no such provision in it, appellants, by virtue
of the clause to reduce in case other contracts of sale by appel-
lees or the Cordage Company tliereaf ter to be made, reduced
the price of twine, were entitled to a corresponding reduction
instanter; and according to appellants' contention there should
have been a credit entered on appellees' contract with appel-
lants then and there, to the extent of tlie value of the advan-
tage there was in the privilege to return, as was given in the
Cordage Company's contract, if the price thereby was reduced
below those in appellees' contract. We think the contract
326 Appellate Courts of Illinois,
Vol. 39.] Luthy v. Waterbury.
with appellees had reference to the sale to be made, if any,
by them in tlie future, and liad no reference to past sales, such
as the one already made by the National Cordage Company.
As to that claim for reduction, without reference to any
other reason, we will say that there can be no basis for it.
We are inclined to hold and think that as to the National
Cordage Couipanj^'s contract, and all that was, or could be
done under it, without changing its terms thereafter, it could
not affect the clause in appellees' contract in reference to the
reduction of prices for twine. It should in our opinion be
held to mean sales to other parties than appellants. The
very object of such a clause, as we have before said, was to
protect appellants in iheir trade in the resale of the twine.
IIow, it may be asked, could appellants be injured hy a subse-
quent sale to themselves by appellees or the Cordage Com-
pany of twine at a reduced price, provided no other such
sales were made to other parties. A reduction of the price*
even a gift of the twine, by tJie National Cordage Company
or appellees, could only work to their advantage, not their
disadvantage, and the same would be true as to any reduction
by means of a new contract of prices named in the National
Cordage Comj)any's contract in question, even if made during
the season, of which there is no evidence. But from the evi-
dence we think the jury was justified in regarding the rebate-
mcnt of the one cent per pound of the twine sold to appel-
lants by the Cordage Company, as not a selling of the twine
within the meaning of appellees' contract, but a mere rebate-
ment, or gratuity, not agreed upon till after the season was
over. Again, the contract of the Cordage Company made
provision in terms for reduction in certain contingencies, and
the sale was made on those conditions. It required no new
agreement between appellants and the Cordage Company to
reduce, to entitle appellants to a reduction; the only instance
required was that the Cordage Company should make sale to
other parties at less prices than named in appellees' contract
with them, then the reduction followed as a matter of right.
If the prices named in the Cordage Company's contract with
appellees became reduced under its terms by reason of sa^es
Second District — December Term, 1890. 327
Luihy V. Waterbury.
or reduced prices to other parties and not bj any new agree-
ment, was that not by virtue of the terms of that contract
and sale ? If that be so, this contract antedated the one with
appellees, and the sale of the twine was made prior to the
contract with the latter. The latter contract only provided
against sales made after its date, and not those made prior
thereto. If the contract to sell and the delivery of the twine
durin^!!^ the selling season under the terms of the contract, in
pursuance of such contract, be regarded as the sale, then the
Cordage Company's sale in the manner the contract of sale
provided, was made when dated, and can not be regarded as a
new sale. It would be no different than if the contract with
the Cordage Company had been originally for a less price per
pound for twine than tlie one subsequently made with appel-
lees. Not would the fact that the National Cordage Com-
pany submitted to a reduction in prices be evidence against
appellees, that such company had sold fur less prices than
were named in appellees' contract. If the Cordage Company,
reduced prices in sales other than the sales to appellants
below those in appellees' contract, it was the duty of appel-
lants to show it, and such reduction when proved would be a
basis for reduction of appellees' prices named in the latter's
contract. We, for the above reasons, conclude tliat the con-
tract, in no particular, of appellant witli the Cordage Company,
was in view of the parties when the contract now in question
was made, and the former was not embraced within its terms.
The appellants insist that a proper construction of the
contract by which it was agreed that "in case the National
Cordage Company or the party of the first part (should)
sell twine during the season at less prices than the above, they
will make a corresponding reduction on the twine," would
embrace all other advantageous terms of sale by reason of
which the buyer may be indirectly benefited, such as the
privilege to return the unsold twine and the giving of longer
time to pay for the twine without interest. But we are
inclined to think such favorable terms as mentioned can not be
fairly considered to be embraced in the terms " less price,"
The word price, as is generally understood, embraces the
328 Appellate Courts of Illinois.
Vol. 39.] Luthy v. Waterbury.
tiling paid in consideration for the article sold, and when speak-
in o^ of the price paid at Peoria for an article shipped from
New York City, the cost of the freight may be added to the
cost in New York to show the price or cost of the article in
Peoria; but we think the privilege to return could not reason-
ably be embraced in the terra "price" of the article. It will
be seen by reference to the contract with the National Cordage
Company that the contract in regard to lowering tlie price of
the twine is quite different from the terms of the contract on
the same subject with appellees. The second section of the for-
mer contract provides, the first party hereby agree, ^'That if
they or any of the members of the National Cordage Company
during the season make lower prices, or more favorable terms,
which would be equivalent to lower prices, to any one, that a
corresponding reduction be made to the second party on this
contract."
Appellees' contract only guarantees against the selling of
twine during the season at less prices. Wo think there is
quite a distinction to be drawn between the two contracts as
we have indicated above, and this, we think, embraces the ques-
tion of the time of payment as well as the agreement to allow
unsold twine to be returned. The fifth and sixth instructions
given for appellee are complained of. They hold that the
warranty of the good condition and merchantable character
of the twine provided for in appellees' contract is to be taken
to refer to the time when the said contract was made, and that
if the twine became in a bad condition afterward, the warranty
would not embrace it. We find by reference to the con*
tract that the warranty refers to the condition of the twine at
its sale and not to its condition at any future time. Of course
if the twine was in bad condition at the time appellants
obtained possession of it, it might be proved, tending to show
that it was in that condition at the date of the contract, unless
the evidence should show to the contrary. But we think that
the defendant got the benefit of such evidence and we find by
reference to the appellants' first instruction given by the court
that they refer to the warranty as taking efiect at the date of
the contract, the same as appellees' instruction; therefore the
Second District — December Term, 1 890. 329
Luthy V. Waterbnry.
appellants are not in a condition to raise such an objection to
the said instructions five and six. Also appellants object to
the giving of the appellees' fourth and eleventh instructions.
The following portion of the fourth instruction is complained
of, to wit :
" To pay no regard to the claim made by defendants that
there was an advantage accruing to the purchaser by reason
of there being a provision in the contract w^hereby he was
accorded the privilege of returning to the seller all twine
remaining unsold at the end of the season, unless the jury
believed from the evidence that sucli privilege of returning
affected the market value of the twine sold with such privi-
lege."
It will be seen from what we have said above that with
reference to the contract here in question the instruction is
not erroneous and was as favorable to appellants as they
could ask, and therefore the refusal of the court to give the
appellants' fourth instruction asked was proper.
The eleventh instruction is as follows : " Although the jury
may believe that the National Cordage Company, or the plaint-
iflFs,madeon settlement for sales previously made of other twines
than those sold by the plaintiffs to the defendants, such settle
ments would not amount to sales within the meaning of said
contract, if made after said contract had been fulfilled on
the part of the seller, unless in pursuance of a prior promise,
under valuable consideration, nor would such settlement
amount to sales, unless made before completion of the con-
tract by the seller, unless the same was made upon a pre-
vious, and upon a good and valuable consideration; that is, a
mere concession by the seller to the buyer, on a settlement
of a past sale, which the seller is under no legal obligation
to make, can not be held to affect the original terms of the
sale."
We think the law as we have above indicated was properly
eriven in this instruction. We have now considered all the
quiBStions raised by appellants as grounds for reversal, and
finding no error in the record, the judgment of the court
below is aifii'med.
Jvdgvient affirmed.
OASES
39 330
138s 583
nc THE
APPELLATE COURTS OF ILLINOIS.
Fourth District — August Term, 1890.
William H. Herdman et al.
V.
Samuel D. Cooper, Sheriff, et al.
Homestead — Real Pvoperty — Sale of under Execution — Irregularities
of— Bill to Set Abider— Practice.
1. A husband can have a homestead in his wife's property to the same
extent ns if the titie to the propcrt}' was in himself; he can have but oi e
homestead. If it attaches to property owned by the wife, he can not have
another in property, the title to which is in himself.
2. Where a debtor resides upon a lot worth more than 8i,000, to it alone
his homestead attaches, althou^ifh other lots are within the same incloc^ure
and used for family purposes. The dwelling house is the foundation fact
upon which the homestead must stand.
3. Upon a bill filed to set as^ide the sale of a lot upon the (ground 'that
complainants were entitled to a homestead therein, and also on account of (he
allcjsed irregularity of such sale, this court holds that the fact that a person
named bid oft said lot at the sale, under a certain execution, did not make
the same complete as to him, in the absence of payment to the sheriff; that
upon failure to do so, it was the duty of the sheriff to readvertise the prop-
erty for sale; that his return of the execution , unsatisfied, to the office of the
clerk, did not relieve him from his duty to hold the same until he had dis-
posed of the levy by a sale; that in such case should the property fail to
bring upon the resale the amount offered upon the first sale thereof; the
first purchaser would be responsible for the difference; and declines to
interfere with the ^ecree for the defendants.
(330)
Fourth District — August Term, liSOO. 331
Herd man v. Cooper.
[Opinion filed February 2, 1891.]
Appeal from the Circuit Court of JeflFerson, County; the
Hon. William C. Jones, Judge, presiding.
William H. Herdman and his wife were 'married in 1850.
At that time Mrs. Herdman was owner, as heir of her father,
of an undivided third of lot 3, block 18, in Mount Vernon,
lend subsequently she became the owner of another undivided
third of the lot, and her husband the owner of the remaining
third. They moved into the house on the lot in 1851 and
have continued to occupy it as a homestead ever since. In
1854 William H. Herdman became the owner of two-thirds
of lot 2 in the same block, and later on the owner of all the
lot except one-eighteenth. When Herdman became the
owner of the two-thirds of lot 2, he took possession of the
lot. The lot was used by his family as a fruit and vegetable
garden, and subsequently he erected a barn, a part of which, a
cow shed, was on lot 3 and the remainder on lot 2. The
value of lot 3 with improvements was variously estimated,
but the weight of the testimony shows that it was worth inore
than $1,000. In July, 1866, the Herdmans mortgaged lot 2
to Samuel H. Watson, by which the homestead right of the
Herdmans, if any, was released. This mortgage was fore-
closed and the premises sold February 13, 1887. A. Right-
nowar recovered a judgment against Herdman at May term,
1888, of the Circuit Court, and redeemed from the foreclosure
sale, and the property was again sold Aiigust 11, 1888, for
the amount of the redemption and the Rightnowar judgment
and costs. Appellee McLaughlin held a judgment against
Herdman on which he sued out an execution, and redeemed
from the sale under the Rightnowar execution, paying to the
sheriff the amount necessary to redeem from the Rightnowar
sale, and a levy was made on lot 2 under the McLaughlin exe-
cution, and the property was again advertised for sale under
tliQ McLaughlin execution, and at such sale, September 15,
1888, the property was struck off to McLaughlin for the&um
of $307. The sheriff recites in his return on the execution,
that after waiting eight days for McLaughlin to complete
332 Appellate Courts of Illinois,
Vol. 39.] Herd man v. Cooper.
his purchase, ho made oat and presented to McLaughlin a
certificate of purchase, and he still refusing to complete the
same, he returned the execution not satisfied.
Afterward, about March 1, 1889, the sheriff took this exe-
cution from the clerk's office and readvertised the property
under the lev}' made the previous August, and again sold the
property to McLaughlin for $797.76, being the full- amount
of the redemption paid by McLaughlin and the amount of his
judgment and costs; and sixty days after, there being no re-
demption from this sale, the sheriff made McLaughlin a deed
for lot 2. At both the sales September 15, 1888, and the
sale March 30, 1889, William H. Herdman notified the sheriff
that he claimed a homestead in lot 2.
On the 29th day of March, 1889, appellant Rightnowar
recovered another judgment against William H. Herdman
for the sura of $48.55. The bill in this case was tiled by Herd-
man and wife and Rightnowar, the Herdmans seeking to set
aside the sale to McLaughlin on the ground that they had a
homestead in lot 2, and also on account of irregularity in
the sale of March 30, 1889, and asking that McLaughlin be
decreed to complete the purchase at the execution sale of
September 15, 18S8, reserving to Rightnowar the right of
redemption from such sale under his judgment of March 29,
1889.
The Circuit Court dismissed the bill, and the complainants
seek to reverse this action of the court by this appeal.
Messrs. Pollock & Pollock, for appellants.
The Supreme Court has decided that a release of the home-
stead right as to one creditor does not operate as a release
in favor of any other creditor. Raber v. Gund, 110 111. 581;
Uume et al. v. Gosset, 43 111. 297; Kingman v. Higgins, 100
111. 319.
The evidence shows conclusively that ever since, in 1864,
lots 2 and 3 were within the same inclosure, without any-
thing to indicate a dividing line; that the principal part of
the barn, with other improvements for the use of the family,
were on lot 2, and the dwelling house, and some other improve-
FouKTH District — August Term, 1890. 383
Herd man v. Cooper.
ments, were on lot 3, and that botli lots were occupied and
used in common as their homestead. The fact is also shown
(though not required in law) that Herdman notified the
sheriff before the levy that lot 2 was claimed as homestead.
It was 'then the duty of the sheriff to have summoned three
householders to make appraisement, etc.; and not having
done so (whether the claim of Herdman is sustained in law
or not), the sale and all proceedings under it are absolutely
void. Hartwell et al. v. McDonald, 69 111. 293; Newman v.
Willetts, 78 111. 397; Muller v. Inderreiden, 79 111. 382; Moore
V. Titman, 33 111. 358, 368, 369.
The homestead right can only be lost by release or aban-
donment in the mode pointed out by the statute. Moore v.
Titman, 33 111. 358, 368.
Homestead can only be released in the statutory mode or
by surrender or abandonment of possession to a purchaser
under a conveyance. Kingman v. Higgins et al., 100 III. 319.
The husband can not defeat the homestead right of the
wife. Allen v. Hawley, (jQ 111. 164.
The husband holds the homestead as trustee for the wife
and children. Cassell v. RoisS, 33 111. 244; Patterson v.
Kreig, 29 111. 514; Best v. Allen, 30 111. 30; Boyd v. Cud-
derback, 31 111. 113; White v. Clark et al., 36 111. 285.
Since the act of 1857, the wife being vested with the
homestead right by law, she can be deprived of it in no other
way made than that prescribed by law — her release of the
right. Booker v. Anderson, 35 111. 66, 87; Gage v. Wheeler
etal., 129 111.197.
In 1861, Sarah Dawson and husband conveyed to William
H. Herdman her one-third interest in lot 3, and in 1862, Elfka
J. Hinman and her husband conveyed her one-third interest
in lot 3- to Mary A. Herdman.
But these conveyances • could not divest or tend to divest
the estate of homestead vested in Ilerdmans in 1854 and 1857.
The homestead right in the wife and children can not be
defeated by any laches of the husband and father. He is in
law as to this right but a trustee. Hubbell v. Canady, 58
III. 425.
334 Appellate Courts of Illinois.
Vol. o9.1 Uerdimtn v. Ck)oper.
If liecan notdefeat the vested right of his wife and children,
surely his creditors can not. Tile mere acquisition of tbe^e
additional interests would not amount to eitiier abandonment
or releabc, in law.
On behalf of appellants, wo contend that where the husband
and fatlier is the owner of property, which is adjacent to and
occupied and used by the family as of their homestead, the
right to hold such property can not be defeated, except by an
abandonment or a conveyance in writing, duly executed and
acknowledged, relinquishing the right.
In her separate property and earnings a wife is as inde-
]>endent of her husband as if she was a stranger to him.
Thomas v. Mueller, 106 111. 36; Patten v. Patten, 75 111. 446.
The language of the statute is unmistakable that there shall
be exempt from levy and forced sale the lot of ground and
buildings thereon occupied as a residence and owned by the
debtor, being a householder and having a family. The home-
stead right of the wife can not be divested except as provided
by statute. Hill v. Bacon, 43 111. 477, 478; Brooks v. Hotch-
kiss, 4 111. App. H5; Johnston v. Dunavan, 17 111. A pp. 59;
Ayres v. Ilawkes et al., 1 III. App. 600; Kichards v. Green,
73 111. 54.
Where the wife has a homestead right tliat she has nut
released, no order can be made by the court for the delivery
of possession. Young v. Gratf, 2b 111. 20, 29.
It is against the policy of the law as well as against the
terms of the homestead act to permit the husband to deprive
M;he wife of lier right of homestead; he can make no stipula-
tion that can deprive her of such right. Thompson on Home-
steads, 172.
Where the residence of the debtor is upon one lot of land
and the other farm buildings on another lot, contiguous, the
debtor is entitled to a liomestead in that portion of his farm
on which his buildings are. Darby v. Dixon, 4 Hi. App.
187; Reinback v. Walter, 27 111. 393.
The homestead may consist of several adjoining tracts in
one inclosure. Thornton v. Boyden, 31 111. 200.
It is a question of fact whether adjoining and contiguor.s
Fourth District — August Term, 1890. 335
Herdman v. Cooper.
tracts of land forming one bodj are or are not parcel of the
homestead. Walters v. The People, 18 111. 198.
But by whom must this fact be settled ? The statute pro-
A'ides a mode, and that is by the sheriflE calling upon throe
householders, and they are authorized to settle it ; the law has
not provided any other mode, and in failing to do so, the
sheriff disregarded his duty.
For tlie reasons already stated, we contend that the estate
of homestead can not be limited to property held in common
or in joint tenancy by husband and wife. We contend further
that the estate can only be supported in property held in
severalty. The question has not been settled in this State.
It may be contended that this question was considered and
settled by this court in the case of William H. Herdman
et al. V. Cooper et al., 29 111. App. 589. The honorable
judge, in delivering the opinion in that case, stated that a
hasty examination of the authorities discloses that certain
States held the afBrmative and othere the contrary rule,
etc. The decision in that case rested upon another question,
and the language of the court we think does not settle this
question, and therefore we take the liberty of presenting
the question for the consideration of tiiis lionorable court.
Exemption laws being remedial, beneficial and humane, must
be liberally construed, and whenever it does not c'early
appear whet|ier the property is embraced within the exemp-
tion statute, the debtor should be allowed the benefit of the
doubt. Freeman on Executions, 208, 209. Thompson on
Homestead Exemptions, at page 181, professes to give the
States in favor of and against tlie proposition. This affords
but very unreliable grounds for an opinion, because he fails
to give the constitutional provisions under which these decis-
ions were made. But considering them as given, we think
the weight of authority is against the proposition. Our stat-
.ute is plain and unambiguous that every householder shall be
entitled to an estate of homestead in the farm or lot of land
owned or rightly possessed, etc., not where he is the owner
or rightly possessed in common; but it can mean nothing else
than separate ownership. If the Legislature had intended to
336 Appellate CourvTS of Illinois.
VoT« 39.] Herdiuan v. Cooppr.
invade the rights of a co-tenant, snrelj they would have
made some provision by which the right of third parties
might be preserved, and we respectfully urge that to hold an
estate in common, subject to the homestead, would be doing
violence to the plain language of our statute, and invade tlie
rights of the co-tenant. This honorable court will not hold,
we think, in view of the statute, that Mary A. Herdman
could not control her interest in lot 3. If she can, then the
homestead is necessarily defeated. By allowing it to be occu-
l)ied by the family in common with her husband's interests,
did she surrender her right? We fail to find any rule by
which this can be accomplished. The Supreme Court say
that as to her separate property, she is as independent of the
husband or his creditors as if she. were single. On this
question we refer the court to the following cases : Wolf
V. Fleshbocker, 5 Cal. 244; Bishop v. Hubbard, 23 Cal. 517;
Garnets V. Dupuy, 47 Cal. 79; Ward v. Huhin, 16 Minn. 159;
West V. Ward, 26 Wis. 580; Dago v. Sutherland, 3 Mich.
218; Sunan v. Walker, 28 La. 608.
An officer may tender a deed or certificate of purchase, but
the proper practice is, in case the purchaser refuses to com-
ply with his purchase, to report the matter to the court and
have the purchaser put under a rule to show cause why he
should not complete his purchase. Herman on Executions,
254, 321 to 330.
In judicial sales, good faith must be observed by officer and
purchaser. Meeker v. Evans, 25 111. 322.
Herdman had a right to effect a redemption. McCormick
V. Wheeler, 36 111. 533.
Where land is sold under execution, and the debtor fails
to redeem within twelve months and confesses a judgment in
favor of another creditor for the express purpose of enabling
such judgment creditor to redeem for the debtor, it is not
fraudulent. Phillips v. Demoss, 14 111. 410; Karnes v. Lloyd,
52 111. 113.
A judgment debtor may procure another to redeem for
him after his right of redemption is lost. Pearson v. Pear-
son, K E. R (111.) 418.
Fourth District — August Term, 1890. 337
Herdman v. Cooper.
So tliat the riglit of redemption from the sale of the IStli
of September, 1888j rested witli Herdman and Eightnowar.
As soon as the execution is deposited in the clerk's office
the return becomes a matter of record, and is beyond the
reach of the officer. Nelson et al. v. Cook, 19 ill. 455.
Here the sheriff made return that he had sold the lot to the
execution creditor, and that satislied the execution as to that
lot until the court, for cause shown, should see proper to set
it aside, which has not been done, and hence the sale of the
30th of March, 1889, was and is void. Hughes v. Streeter,
24 III. 649.
Where the plaintiff in execution becomes the purchaser, if
no undue advantage is taken of him, he is bound by his bid.
Vanscoyce v. Kimler, 77 111. 151; Farmers Bank v. Sper-
ling, 113 111. 273.
Mr. Georgb B. Leonard, for appellees.
Appellants claim that McLaughlin should have completed
the attempted sale of this lot on September 15, 1888, and
upon his refusal to pay the amount of his bid and receive a
certificate of purchase at that time, that all right of the
sheriff. Cooper, was lost (especially after he had returned this
execution), to again offer this lot for sale under* his levy of
this process. This position is untenable for the reason that
McLaughlin stood in the same relation to this attempted sale
as would a stranger who may have then been the highest bidder,
and refused to complete his purchase, that is, upon the prop-
erty being offered again for sale by the officer, if it should not
bring as much as this first bid. McLaughlin, upon a certain
contingency, would be liable for the difference between his
bid and the smaller sum for which it was finally sold, and the
right of the sheriff to again offer this lot for sale can not fairly
be questioned, and for authorities on the last points above, see
Hill v. Hill, 68 111. 239; Thrifts v. Fritz, 101 111. 457; Mauld-
ing v. Steele, 105 111. 644, and cases therein cited.
It is also claimed by appellants that the officer, having
returned his execution after attempting to sell this lot in
September, 1888, therefore had no right to re-advertise
Vol. XXXIX 23
338 Appellate Courts op Illinois.
Vol. 39.] Herd man v. Cooper.
and sell this property under this levy. This position is also
untenable. The levy having been made, the sale could be
made at any time within seven years, although the execution
may have been returned or even lost before sale. Breed v.
Gorham, 108 III. 81; Hastings v. Bryant, 115 111.69; Barth v.
C. :Nat'l Bank, 115 111. 472; Dobbins v. First Nat'l Bank, 112
111. 553; Holman v. Gill, 107 111. 467; Parks v. Larochhe, 15
111. App. 354; Conwell v. Watkins, 71 III. 488; Reddick v.
Cloud, 2 Gilm. 670; Willoughby v. Dewey, 63 111. 246; Phillips
v. Dana, 3 Scam. 551.
This family can not have two homesteads. Tourville v.
Pierson, 39 III. 446; Raber v. Gund, 110 III. 581.
And this right of homestead extends to every interest in
lands that may be taken on execution. Shackleford v. Tod-
hunter, 4 111. App. 271; Blue v. Blue, 38 111. 9; Conklin v. Fos-
ter, 57 III. 104; Tomlin v. Hillyard, 43 111. 300; Watson v. Saxer,
102 111. 585; Boyd v. Cudderback, 31 111. 13.
The homestead being in lot 3 this levy and sale was right,
although both lots were under the same inclosure. Hay v.
Baugh, 77111. 500; Raben v. Gund, above cited in 110 111. 581.
In the case of Hay v. Baugh, which is like this one, the
court said : "We can see no pretense for holding lot 2 exempt
from levy and sale; to so hold would not be to construe the
statute but to override and disregard it;" and nothing is found
in this objection.
It is claimed by counsel for appellants that we, with the
creditor class, are endeavoring to narrow the debtor's rights
to a homestead. This we deny, but follow the law, which has
given the debtor, who is the head of a family, and residing
with the same, a homestead in every character of title to the
house and piece of land occupied and rightfully possessed by
the householder. But the law does not give to nor liave the
courts ever held that this right of homestead would enable
husband and wife to hold $2,000 worth of property in two
adjoining pieces of property, free from the claims of both
their creditors, as a homestead. On the contrary, the hold-
ings of our courts have been to tlie reverse, by holding that
this homestead right could be claimed by either husband or
Fourth District — August Term, 1890. 339
fierdman v. Cooper.
wife in tlie property of the other thus occupied, thereby
avoiding any necessity for a separate homestead in each of
them. Attorneys for appellants claim tliat, as the statute of
1861 allows a wife to enjoy her property free from any claim
whatever, as though she was unmarried, Herdman's right of
homestead in this wife's land, or undivided two-thirds interest
in lot 3, could not be claimed. We answer this by saying
that there was no intention, in passing the married women's
act of 1861, to cut off this right of homestead in the wife's
land they may occupy as a homestead, nor did they intend
thereby to increase the rights of a husband, thus situated, as
against his creditors. However, our Supreme Court has
repeatedly Iield that nnder. this statute the husband has this
homestead right in the land or lot of his wife thus occupied.
Henson v. Moore, 104 111. 403; Sanford v. Finkle, 112 111.
146, above cited.
Eeeves, J. We think it must be conceded, in the light of
the decisions of the Supreme Court of this State, that a
husband can have a homestead in his wife's property to the
same extent as if the title to the property was in himself.
He can have but one homestead. If that attaches to property
owned by the wife he can not have another homestead in
property the title to which is in himself. In this case, how-
ever, it is contended that lots 2 and 3, being in one inclos-
nre, and both lots nsed in connection with the family, the
homestead right or estate attached to both lots, even though
the value of lot 3, upon which the residence was located, was
more than $1,000. The case of Hay v. Bangh et al., 77
111. 600, would seem clearly to settle this question against
appellants. In that case Hay owned lots 1 and 2 in a cer-
tain block, both in one inclosure. Lot 1, on which the resi-
dence was located, was shown to be worth more than $1,000.
A levy was made, nnder an execution against Hay, on lot 2,
and he set up the same claim as is made by appellants, but
the court said : " Was lot 2 a part of his homestead with-
in the meaning of statute? * * * The statute exempts
the lot of ground upon which the debtor resides with his
340 Appellate Courts of Illinois.
Vol. 39.] Herdman v. Cooper.
family; not the inclosure, homestead or farm. In this case
Hay resided on lot 1, which was worth more than 81,000
and it was his homestead; citing Reinbach v. Walters, 27
111. 393; Tourville v. Pierson, 39 111. 447; Hill v. Bacon,
43 111. 477; Hubbel v. Canady, 58 111. 425. Lots 1 and 2
are separate tracts of ground and are distinct legal snb-
divisions under the town plat, as much so as are two differ-
ent quarter sections of land. We can, in this case, see no
pretense for holding lot 2 was exempt from levy and sale.
To so hold would not be to construe the statute, but to over-
ride and disregard it"
Where two lots are in one inclosure, the dwelling house
on one and the other used in connection with the dwelling
for the use of the family, and the one on which the dwelling
is situated is not worth $1,000, there would be good reason
for saying that the homestead right attached to both lots;
but when the lot on which the dwelling is situated, is worth
more than $1,000, there is no more reason for saying that the
homestead attaches to the adjoining lot in the same inclosure,
than there would be for saying that the homestead right
would attach to a section of land in one inclosure, where the
dwelling house was located on one forty-acre tract of the
section. Now, taking the facts of this case under this view
of the law, it would seem to follow, as a necessary conclu-
sion, that the homestead right of Herdman is confined to lot
8; and if we should concede that the condition of the title to
lot 3 was not such as would support a homestead, we fail to
see how such a right could attach to lot 2. The dwelliiig
house, which is the foundation fact upon which the home-
stead must stand, does not stand upon any part of lot 2.
Hence we do not find it necessary to decide the question
whether the homestead can be maintained when the title to
premises is held in common.
It is also claimed that when McLaughlin bid off lot 2 at the
sale under his execution, September 15, 1888, the sale was
complete so far as McLaughlin was concerned. This seems to
us to be a misapprehension. The sale was not complete until
the money was paid to the sheriff, and under the facts shown
Fourth District — August Term, 1890. 341
Ham V. Peery.
we think it was clearly the duty of the sheriff to re-advertise
the property for^sale, and his return of the execution to the
office of the clerk did not relieve him from this duty. He had
made a levy of the execution on lot 2 in the lifetime of the
execution; it was his duty to hold the execution until he had
disposed of the levy by a sale.
The return made by the sheriff on the execution after the
sale of September 15, 188S, shows that it was not completed;
that the purchaser refused to complete it. Bellingall v.
Duncan et al., 3 Gilm. 477. The most that could result in
such a case would be to make the purchaser, if on a re-sale
the property did not bring as much as at first sale, responsi-
ble for the difference. In this (^ase the property brought
more than double the amount it did at the first sale.
Finding no error in the action of the Circuit Court in dis-
missing the bill of appellant, the same is affirmed.
Decree affirmed.
89
108
341
1168
C. D. Ham et al.
V.
Richard A. Peery, for use, etc.
Gamifthmetif — Barth — CerHfcate of Deposit — Costs — Judgment — Infov'
tnalUy in — Practice — Demand,
1. Garniphees are not Ual>le for costs, but for the amount in tbeir hands
belon^rin^ to the debtor in attachment; and the uttachinfr creditor can make
A demand that will be availing only by suing out the writ and causing it to
be served on the garnishees, and from the time of service the money then
in their hands, belonging to the debtor in attachment, becomes subject to the
legal claims of the attaching creditor against such debtor.
2. The proper practice in such cases is to enter judgment against the gar-
nishee in favor of the defendant in attachment for the benefit of the attach-
ment creditor, and whatever surplus there may be after paying the creditor
and costs belongs to the debtor in attachment
[Opinion filed February 2, 1891.]
342 Appellate Courts of Illinois.
Vol. 39.] Hu.m v. Peery.
In error to the Circuit Court of Jefferson Countj; the Hon.
William C. Jones, Judge, presiding.
Mr. Albert Watson, for plaintiffs in error.
Mr. George B. Leonard, for defendant in error.
Green, J. Richard A. Peery deposited on February 13,
1890, in the bank of C. D. Hara & Co., $200, and took a certifi-
cate of deposit therefor, of that date, payable to the order of
Jiimself, on demand, after date. On February 16, 1890, John
J. Manion sued out a writ of attachment against Peery, and
on February 18, 1890, plaintiffs in error -were served as gar-
nishees of Peery. In the justice court judgment was ren-
dered against the garnishees, in favor of Peery, for tlie use of
Manion. An appeal from this judgment was taken to the
Circuit Court, where the cause was tried by the court without
a jury. The court found that Peery was indebted to Manion
in the sum of $23.65 and costs recovered in the justice's court;
that on March 3, 1890, and after the date of the service of
attachment writ from the justice court on the firm of C. D.
Ham & Co., that firm had in their possession $200, which had
been deposited by Peery in their bank on or about February
17, 1890, and a certificate of deposit therefor was delivered
to Peery by said firm, which was due and payable to him at
the time it was so delivered; that said certificate had not been
assigned or transferred and was held and owned by Peery on
the 3d day of March aforesaid. The court entered the follow-
ing judgment on its findings: "Judgment is therefore ren-
dered against the defendant, C. D. Ham & Company, and in
favor of Richard A. Peery, for the sum of (formerly) $200,
$23 and the costs of this suit (in the proceedings below as
well as in this court) being for the use of John J. Mawion. It
is therefore ordered that said John J. Manion, as aforesaid,
recover of said C. D. Ham & Company the said sum of
$23.65 and costs aforesaid, and that execution issue therefor."
Plaintiffs in error bring the record up to this court and ask
us to reverse the judgment for two reasons : first, because no
demand was made upon plaintiffs in error for the payment of
the money deposited by Peery, and it being one of the con-
Fourth District — August Term, 1890. 343
Ham V. Peery.
ditions of the certificate that said money should be payable to
the depositor or his assignee on dema/ixd^ the condition must
be cobiplied with, and such demand made, before the bankers
can be held liable as garnishees of Peery.
One purpose of the attachment act is, to subject'the money,
credits and property belonging to the debtor, held by others
and not in his possession, to the payment of the legal claims
of his attaching creditors. This purpose would be defeated
if the contention should be sustained. With equal reason it
might be urged the bankers would not be so liable if the
demand was made without the return of the certificate, because
not only is demand necessary but the money is payable on the
return of the certificate by the very terms thereof; and it
would follow that a debtor, having money on deposit which
ought to be appropriated to the payment of his just debts, by
refusing to demand the money and return the certificate,
could place the deposit out of the reach of his attaching cred-
itors. The purpose of a demand by a depositor upon the
banker, is to give the latter an opportunity to pay and avoid
a fiuit and tlie costs thereof. Garnishees are not liable for
costs but for the amount in their hands belonging to the
debtor in attachment, and the attaching creditor can make a
demand that would be availing only by suing out the writ and
causing it to be served on the garnishees, and from the time
of service the money, then in their hands, belonging to the
Jebtor in attachment, becomes subject to the legal claims of
the attaching creditor against such debtor. In our judgment
the first reason suggested why this court should reverse is not
tenable.
The second reason for reversing is, " That the judgment as
entered is informal and affords no protection to plaintiffs in
error."
The judgment of the court below we have quoted literally,
and it appears thereby judgment was rendered against 0. D.
Ham & Co. in favor of Richard A. Peery, for $200, and judg-
ment was also rendered against them in favor of John J.
Manion for $23,65 and costs. A judgment for a certain
amount is rendered in favor of one person, and another judg-
ment for a different and additional amount is also entered in
344 Appellate Courts op Illinois.
Vol. 39.J City of Vandalia v. Ronp.
favor of another person, together aggregating $223.65, and
against garnishees having but §200 in tlieir hands belonging
to the debtor in attachment. This judgment is informnl and
erroneous and must be reversed. Manion had no legal right
to recover in his own name a judgment against plaintiffs in
error. The proper and established practice in this State is to
enter judgment against the garnishee in favor of the defend-
ant in attachment for the benefit of the attachment crcditur.
Whatever surplus there may be after paj'ing the creditor
and costs, belongs to the debtor in attachment. Stahl et al.
V. Webster et al., 11 III. 511; Webster et al. v. Steele et
al., 75 111. 544. The judgment is reversed and the cause
remanded, the costs in this court to be taxed against John J.
Manion.
Heversed and remanded.
39 344
-55L5!? The City of Vandalia
V.
Pickett Ropp.
Municipal Corporation, Negligence of — Street Crossing — Personal
Injuries — Contributory Negligence — Evidence — Instructions,
1. A municipal corporation is bound, with reference to all of its street
crossings, to use reasonable care and diligence to keep the same in a rea-
sonably safe condition for the use of the public.
2. Whether such care was exercised in a given case is a question of fact
for the jury.
3. Likewise whether under given circumstances the plaintiff was guilty
of contributory negligence.
4. Where a party while exercising due and ordinary c«are for his personal
safety is injured by the negligent acts of another, there may be a recov-
ery on account of such negligent acts, where both parties are equally in
the position of right, which they hold independently of each other; the
plaintiff is only bound to show that the injury was produced by the negli-
gence of the defendant, and that he exercised ordinary care and diligence
in endeavoring to avoid it,
5. Evidence on behalf of the plaintiff, going to show that repairs were
made to whatever caused a given injury after the occurrence thereof, should
be admitted in an action to recover therefor.
Fourth District — August Term, 1890. 345
City of Vandalia v. Ropp.
«
6. In the case presented, this court holds that the defendant was guilty
of negligence in not keeping in proper repair the crossing which caused
the injury in question, and declines to interfere with the verdict for the
plaintijff.
[Opinion filed Febrnary 2, 1891.]
In eeeor to the Circuit Court of Fayette County; the
Hon. James A. Creiqhton, Judge, presiding.
Defendant in error brought this suit against the city of
Vandalia to recover damages for personal injuries caused by
the negligence of the city. The declaration of three counts
substantially charges that planks of a street crossing were per-
mitted to be and remained loose, shaky and unfastened, and
to be ten inches higher than the ground, and the approaches
were allowed to be and remain unguarded; that while plaintiflE
was, with all due care and caution, driving a team and wagon
upon and across said street and crossing, by reason of said bad
and dangerous condition of said street and crossing, his wagon
was tipped, and so suddenly jarred and shaken that the load
on said wagon, upon which plaintiff was then riding, was tipped,
turned and thrown from said wagon, by means whereof
plaintiff was then and there thrown from the load and wagon
and upon the ground, and one of his legs broken, and he was
otherwise hurt and injured permanently, etc. To the declara-
tion defendant pleaded '*not guilty;" issue was joined upon
that plea, a trial was had, the jury found defendant guilty and
assessed plaintiff's damages at $400. Defendant thereupon
moved for a new trial, but the court overruled the motion
and entered judgment on the verdict for plaintiff. Defend-
ant sued out a writ of error and brings the record to this court
for review.
The crossing in question was constructed of two-inch oak
plank laid upon cross-ties. It was sixty to seventy feet long,
about three feet wide on top, and extended east and west
across Eighth street. A. space of about twenty-six feet in the
center was constructed and used for teams and vehicles. This
crossing was at the intersection of Eighth and Main streets
in said city, and was laid along on the north side of Main
346 Appellate Courts of Illinois.
Vol. 89.]- City of Vandalia v. Ropp.
across Eighth. Eighth street runs north and sonth and Main
street east and west. The Vandalia raih-oad track is laid on
the south side of Main street, parallel with said crossing, and
about forty feet south of it. The natural surface of the
ground immediately from. said crossing, south and west, is a
aecline or down grade. On its north side the crossing along
the space used for wagons was nearly level with the street,
and on its south side was from six to ten inches above the
surface. On this side, along tlie twenty -six feet of space, the
cross-ties had been beveled off,, and upon the beveled surface
oak plank two inches thick and about eight inches wide had
been nailed, forming an inclined approach to the top of the
crossing. At the time of his injury plaintiff was employed as
a teamster by a firm engaged in baling hay at a barn on
Eighth street, about half a block north of the crossing.
He had put half of an ordinary load of bales upon his
wagon in the barn, when he was directed by the person in
charge there, to go on with it to the car and make room for
a man coming to the- barn with a load of loose hay. Plaintiff
drove out of the barn and down the street toward the crosf-
ing, stopping a short distance north of it to arrange the load
by putting two bales of the front tier back, and thus make it
more safe and less liable to be tipped off in driving over the
crossing. He then got on the wagon and drove at a slow
walk down to and over the crossing, and the front wheel of
the wagon dropped abruptly down from tlie south edge of the
crossing to the ground, tipping off the part of the load upon
which he was seated, and himself upon the ground, and
breaking his right leg. By reason of his injury he was con-
fined to the house about eight weeks, was unable to do any
work for three mouths, contracted a bill for medical treat-
ment of ^80, and the evidence tends to show such injury is
likely to be permanent. '
Messrs. John A. Bingham and Farmer & Brown, for
plaintiff in error.
Messrs. Henry & Guinn, for defendant in error.
Fourth District — August Term, 1890. 347
City of Vandalia v. Ropp.
Green, J. CTnder the facts proven in this case, it is
insisted on behalf of plaintiff in error that the verdict is
without support and the judgment ought to be reversed, first,
"because the plaintiff knew and was thoroughly acquainted
with the condition of the crossing for some time just prior
to the accident, and knowingly and voluntarily placed himself
in a condition to receive an injury;" second, " because at the
time that the injury was received, he was not in the exercise
of that degree of care and caution that it was his duty to
have exercised under the circumstances;" third, " because the
crossing was not in an unsafe or dangerous condition for use
by any one in the exercise of ordinary care and caution." An
inspection of the record satisfies us that the jury were fully
warranted by the evidence in finding that the crossing was
in a dangerous and defective condition at the time of
plaintifFs injury. In the space over which wagons were
hauled some of the top boards were unfastened at the ends,
and were warped or cupped up in a way to probably cause a
wagon to jar or tip in passing over. The approach plauk on
the south side, where the usual course of travel was, had been
suffered to remain loose and unfastened to the cross-ties, and
had been pushed oat of its proper place, leaving an abrupt
descent of six to eight inches from the top of the crossing to the
ground at the time of the accident, and the approach to the
crossing from the south had never been graded, although it
was practicable to do so, and thus have probably prevented the
accident. The crossing had remained in such .an unsafe and
defective condition for a length of time prior to the injury suf-
ficient to enable the city oflScfals, using ordinary diligence, to
have discovered its condition and repair it, but it seems to
have been a place entirely neglected. It is suggested, how-
ever, that this crossing was not much used, and hence the
city should not be held to the exercise of the same degree of
care and diligence to keep it in repair as in the case of a street
crossing where the travel was greater. "We understand the
duty imposed upon the municipal corporation by the law with
respect to all its street crossings, is to use reasonable care and
diligence to keep such crossnigs in ^ reasonably safe condition
for the use of the public. Whether defendant performed this
o
18 Appellate Courts of Illinois.
Vol. 39.] City of Vandalia v. Ropp.
duty with respect to this crossing was a question to be deter-
mined bj the jury in view of all the facts and circumstances
proven. As before said, they were justified by the evi-
dence in finding the city had failed to perform this legal duty,
and was guilty of the negligence charged, and that plaintiff's
injury resulted from that negligence.
The question of plaintiff's contributory negligence was also
a question of fact for the jury to determine, and the evidence
shows he stopped before going upon the crossing, arranged
his load to make it more safe, and less liable to tip off, then
drove at a slow walk to and upon the crossing, straight across,
at the usual and best place to crosB, a little east of the center
of the twenty-six feet space mentioned. Ordinary care and
caution on liis part could be fairly inferred by the jury from
these facts.
The contention that plaintiff know the condition of the
crossing for some time prior to the accident, and know-
ingly and voluntarily placed himself in a condition to receive
an injury, remains to be considered. Plaintiff had seen
the crossing and its condition several times before he was
injured and had walked over it, but had not driven over
it until the day before he was hurt; had hauled five or. six
loads of baled hay from the barn over the crossing on that
day. He knew the approach board was off at the time he
was hurt, and these facts are relied on to establish the infer-
ence that he knowingly and voluntarily placed himself in a
condition to receive an injury. But on the other hand he
was doing his lawful work of hauling over a street and cross-
ing opened and in use for such purpose. It was the only
route he could use to transport his load to the car; he had
hauled loads over the same place without accident the day
before; he was in the exercise of due care and caution, so far
as fixing his load and driving were concerned, and althou^
his knowledge of the condition of the crossing was a circum-
stance proper for the consideration of the jury, and was
doubtless considered by them, yet it must be taken in connec-
tion with all the other facts and circumstances in evidence in
order to properly determine the question whether he was
guilty of such negligence as would bar his recovery, notwith-
FouETH District — ^August Term, 1890. 349
City of Vandalia v. Ropp.
Standing defendant's failure to perform its legal duty as
charged. The degree of care which the law required the
plaintiff to exercise was ordinary care under all circumstances
of the case. The plaintiff's knowledge as to the condition of
the crossing would be one of the circumstances to be consid-
ered by the jury in determining the question whether there had
been the exercise of ordinary care. Bloomington v. Cham-
berlain, 104 III. 268; City of Aurora v. Ilillman, 90 111. 61.
In tiie case of Calumet Iron and Steel Co. v. Martin, 115 111.
358, many authorities are cited and the questions here presented
are fully discussed. It is there said, the necessary implication
froiathe rulings in these cases obviously is, that where a party,
while observing due or ordinary care for his personal safety,
is injured by the negligent acts of another, there may be^ a
recovery on account of such negligent acts when both parties
are equally in the position of right, which they hold independ-
ently of each other; the plaintiff is only bound to show that
the injury was produced by the negligence of the defendant,
and that he exercised ordinary care or diligence in endeavor-
ing to avoid it. What particular facts amounted to an exer-
cise of ordinary care, or what particular facts amounted to a
want of ordinary care, it was for the jury to determine. City
of Chicago v. McLean, 133 III. 148. Applying the rules
thus announced and after examining all the evidence, we are
satisfied it warranted the verdict rendered. The admission of
testimony on behalf of the plaintiff concerning repairs at the
crossing after the accident, under the decision of our Supreme
Court was not error. We do not think the first, seventh
and ninth instructions given for plaintiff were erroneous or
calculated to mislead the jury. The instruction asked for on
behalf of defendant and refused is not a correct statement of
the law. In substance it amounts to this, that the defendant
could not be held to the exercise of the same degree of care
and diligence (that is, reasonable care and diligerxce,) in keeping
this crossing in a reasonably safe condition as in the case of a
crossing more used. We have expressed our views on this pro|>
osition, and hold that the court properly refused the instruction.
The judgment is affirmed.
Judgment affirmed.
!
350 Appellate Courts of Illinois.
Vol. 09.] Miller v. Rolen.
J. F. Miller
V.
W. R Eolen.
ExempHons^Schedtile — Failure to Deliver within Proper Time —
Replevin,
Where a debtor makes out, sigfDs and swear? ta a schedule of his prop
erty» and leaves the same at a place agreed upon/ for the officer, it amounts
to a delivery where the understanding is that the officer shall call tbore for it.
[Opinion filed February 2, 1891.]
Appeal from the Circuit Court of Richland County; the
Hon. Carboll C. Boggs, Judge, presiding.
Messrs. Allen & Fkitchey, for appellant.
Mr. J. S. MoNTBAY, for appellee.
Green, J. Appellee, defendant in execution, brought
replevin for a piano against appellant, who, as constable, levied
upon it by virtue of the writ. The cause was tried by the
court and a finding and judgment in favor of plaintiff resulted.
The only point presented on behalf of appellant necessary to
notice is the claim that appellee, when notified of the execu-
tion, did not deliver to the oflicer the schedule required by
the statute. It is not denied, appellee had no more property^
including the piano, than was exempt from execution, nor
that he made a schedule in proper form, of all his personal
property, subscribed and sworn to by him, as provided by
law; but it is said this schedule was not delivered. Plaintiff
testified he told appellant when he read the execution to him,
that he was ready to schedule and would go right over to the
squire's office and do so and requested appellant to come.
The latter said he did not have time. Plaintiff then said he
would go over, make the schedule, and leave it with the
squire for appellant, who replied, all right, he would afterward
Fourth Distbict — 'August Term, 1890. 351
T.. St. L. & K. C. R. R. Co. v. Conroy.
gCKand get it Plaintiflf at once went over to said office, there
made out, subscribed and swore to the schedule and left it
with the squire, for appellant, as had been agreed. Plaintiflf
was corroborated to some extent by the witness Phillips, and
contradicted by appellant. We thinks the court below was
fully justified in finding as it did for plaintiflf. Tliere
was a substantial delivery of the schedule to the officer. It
was left for him at the place appointed and where he agreed
to go and get it. By his assent to the arrangement made for
delivery, he induced plaintiff to act with the honest belief
that such delivery would be accepted, and can not now be per-
mitted to repudiate his agreement It is aptly said in Lang-
ston v. Murphy, 31 111. App. 188, "It is the duty of a con-
stable, in seeking to enforce an execution, to act fairly and in
good faith, and not use the provisions of the exemption law
as a trap to catch the debtors who are honestly and in good
faith seeking to avail themselves of its benefits."
No reason is perceived for reversing the judgment and it
is affirmed.
Judgment affinned.
30 ^1}
16Bs 147
39 351
Toledo, St. Louis & Kansas City Eailroad CoM-r^ 3'
PANY ^^ ^-
- ^^^ -^39 351
V. 104 1 59
T f^ 104 60
John Conroy. eio4 ^ 6i
Masfef and Servant — Negligence of Master — Personal Injuries — Dam-
ages — Release and Satisfaction — Fraud — Independent Contractor,
1. Tn work done under the charter powers of a railroad company by a
contractor, he exercising the power given said company by its charter, such
contractor is a servant of the company so far as the pablic is concerned, and
it has the right to hold tlt^e company responsible for his acts, he being in
reality the company that is acting.
2. This court declines, in view of the evidence, to interfere with the
judgment for the plaintiff in an action brought by a servant to recover for
personal injuries suffered through the alleged negligence of his employer.
352 Appellate Courts of Illinois.
Vol. 39.] T., St. L. & K. C. R. R. Co. v. Conroy.
[Opinion filed February 2, 1891.]
Appeal from the City Court of East St. Louis, llJinois;
the Hon. B. H. Canby, Judge, presiding.
On the 6th day of January, 1889, appellee war working
upon the road bed of appellant in and near the City of East
St. Louis. Under orders from his foreman he with a number
of others got upon a hand-car to go out on the road to a
place where the track was bein^ changed from a narrow to
the standard gauge, to assist in this work, and on the way out
the hand-car left the track and tipped over and fell upon
appellee and broke his leg. It was claimed that the hand-car
was in bad repair and particularly that the axles were bent so
that the car was liable to leave the track. In addition to the
general issue, defendant pleaded a release, and accord and
satisfaction. Replications were filed to the second and third
pleas, setting up that the settlement was procured by fraud
and that the consideration for the same had not been paid.
The defendant claimed that plaintiff was not in its employ,
but in the employ of one Kneeland, who, under a contract
with the company, was engaged in changing the gauge of the
track from the narrow to the standard gauge.
Messrs. Clarkncb Brown, H. A. JN'eal and E. C. Rhoads,
for appellant.
Messrs. Alex. FLANNAOENand Jesse M. Feeels, for appellee.
Reeves, J. The first question raised upon this record is that
appellee was the servant and employe of one S. H. Kneeland,
who, under a contract with appellant, was reconstructing the
track of the railroad company by changing the gauge from the
narrow to the standard gauge, and that Kneeland was operat-
ing the hand-car which caused the injury to appellee and
therefore that Kneeland alone was responsible to appellee
for his injury, if any one was liable, and in no event was
appellant liable.
Even if we concede that appellee was working for Kneeland,
the contractor, we do not see, under the other facts shown,
Fourth District — August Term, 1890. 353
■ ■ — — -■■■_■_ . . , — -
T., St L. & K. C. R. R. (^o. v. Conroy.
how that can mako any difference as to appellant's liability.
It mnst be conceded, we think, that the work Kneeland was
doing was work done in pursuance of the charter powers of
appellant to construct a railroad. Appellant had no power
directly, through its own immediate agents or by contractors,
to construct or reconstruct a railroad on lands acquired for its
right of way, except the power derived from its charter. It
was engaged in the work of reconstructing its track, through
a contractor, and he, in the performance of his contract, was
exercising the power given to appellant by its charter. Under
these conditions the contractor was the servant of the com-
pany, so far as the public were concerned, and the public has
the right to hold the company responsible for his acts, because
it is really the company that is acting. West v. St. Louis,
Vandalia & Terre Haute Riilroad Company, 63 III. 545; Bals-
ley V. St. Louis, Alton & Terre Haute R R Co., 119 III. 68.
It, however, appears from the preponderance of the testi-
mony, that the hand-car that caused the injury belonged to
the railroad company. There is testimony tending to show
that appellee was in the direct employ of the company, and
there can be no doubt that he believed he was working for the
company and was paid by the company. He was in fact paid
from the pay car of the company and by the man who was
the paymaster of the company. But as we have seen, it can
make no difference under the facts whether he was in the di-
rect employ of the company, or in the employ of Kneeland,
the contractor. He was, in either case, the servant of the
Company, and the company is responsible for his injury. It
is further objected that the proof does not show that the axle
of the hand-car was bent or sprung. One witness testified that
it was, one that he did not know that it was, one that in his
opinion it was not, and two others that the motion of the car
when running was " zig-zag." This testimony would seem fairly
to support the linding of the jury that the axle was sprung or
bent We find no sufficient reason for disturbing the finding of
the jury as to the alleged release by appellee of his cause of ac-
tion. No other questions are raised in the case. The judgment
of the City Court is affirmed. Judgment affirmed.
Vor. XXXIX 23
i
354
Appellate Courts of Illinois.
Vol. 89.] St. L. & C. R. R. Co. v. E. St. L. & 0. R. R. Co.
39 354
1898 401,
30 354
47 422
150s 484
The St. Louis & Cairo Railroad Company
V.
The East St. Louis & Carondelet Railroad Com-
pany.
Landlord and Tenant — Lease of Track — Railroads — Rental — Recovery
of.
1. Franchises as well as lands and tenements may be demised. A rail-
road company may lease its franchises and property by authority of the
Leffislature.
2. A receiver can not, under a contract between bis insolvent and another,
enter upon and use the property of the latter and without his consent repu-
diate or change the terms thereof.
3. The assignee of the lessee of a railroad track, using the same under the
conditions of a lease duly entered into, is bound to pay the rent according to
the terras thereof.
4. This court declines, in view of the evidence, to interfere with the
judgment in behalf of the plaintiff in an action brought to recover a bal-
ance alleged to be due for the rental and use of its track and right of way
by defendant company.
[Opinion filed Febrnary 2, 1891.]
Appeal from the Circuit Court of St. Clair County; the
Hon. George W. Wall, Judge, presiding.
This was a suit in assumpsit brougTit by appellee against
appellant to recover a balance* alleged to be due for the rental
and use of appellant's track and right of way from Decem-
ber 12' 1881, to the 31st day of August, 1883, inclusive, at
the rate of $25 per day, ad damnum $12,000. The canse
was tried by the court by consent of the parties, and no
written propositions were presented by either party to tlie
court, to be held as the law in the decision of the case. The
court found the issues for the plaintiff and assessed its dam-
ages at $11,004.34. Defendant's motion for a new trial was
overruled. Judgment was entered for plaintiff on the finding
of the court and defendant took this appeal.
The contract relied upon by plaintiff below to sustain^ its
rJcT'it of recovery under the facts proven, is as follows:
Fourth District — August Term, 1890. 355
St. L. & C. R. R. Co. v. E. St. L. & C. R. R. Co.
The East St. Louis & Carondelet Railway will permit the
Cairo & St. Louis Railroad Company to run trains upon their
road from the junction near and below Cahokia to the rail-
road of the Illinois & St. Louis Railroad Coal Company, near
East St. Louis, from and after the first day of May, A. D.
1873, for five years next ensuing, upon the following condi-
tions, viz. :
1. The Cairo & St. Louis Railroad Company shall furnish
materials necessary for a third rail between the rails of the
main track of the East St. Louis & Carondelet Railway, in-
cluding rails, frogs, switches, fastenings, etc., and to repay the
cost of laying the same, to be done by and under the direction
of the East St. Louis & Carondelet Railwav.
2. The Cairo & St. Louis Railroad Comj)any shall pay for
each loaded car run over said road, or to intermediate points
on the line, fifty cents, provided there are no more than fifty
cars so run per day; all cars over the number of fifty
per day and not exceeding seventy -five in the aggregate,
shall be paid for witli forty cents ))er car; all cars over
seventy-five and not exceeding one hundred in the aggregate
« shall be paid for with thirty cents per car, and all cars over
one hundred per day shall be paid at the* rate of twentj^-five
cents per car, payments to be made monthly, on the 10th day
of each month, for the month expiring on the last day of the
next preceding month, at the office of the East St Louis &
Carondelet Railway, at East St. Louis, Illinois.
Provided that from and after the 1st day of July next, the
said Cairo & St. Louis Railroad Company shall pa}' for the
privilege granted them by this agreement not less than S25
per day, whether the sum due under the above enumerated
rate of charges amounts to that sum or not,
3. The roadbed and track to be kept in repair by the
East St. Louis & Carondelet Railway at their expense, except-
ing only tlie cost of renewals required on the line of third
rail, and frogs and switches necessary, and maintained for the
use of said Cairo & St Louis Railroad,
4. The time table for the passenger trains for the Cairo
& St Louis Railroad shall be established by mutual agreement
356 Appellate Courts of Illinois.
Vol. 39.] St. L. & C. R. R. Co. v. E. St. L. & C. R. R. Co.
between the proper representatives of the parties hereto, so
as to answer the purpose of said Cairo & St. Louis Kailroad
Conipany as near as may be without manifest injury and det-
riment to the interests of the East St. Louis & Oarondelet
Railway.
5. The time for the running of freight trains by the Cairo
& St. Louis Kaih'oad Company shall be fixed by the East St
Louis & Carondelet Railway Company, so as to permit as
many as six trains each way daily; provided that every freight
train run on sucli time table shall, from and after the first
day of June next, be counted as made up of not less than
thirty cars, unless there be less than thirty cars to run a day.
6. Either party, by their president or general manager,
shall have the right to terminate this agreement upon ninety
days written nQtice,from and after July 1, 1873, in which case
the materials furnished by the Cairo & St Louis Railroad
Company shall be returned to them in as good condition as
received, natural wear and decay excepted.
7. Cars passing loaded one way shall be passed on their
return free of charge, if returned witliin ten days; empty care,
if returned loaded within ten days, sliall only be charged for
one time; otherwise empty cars shall be charged for same as
loaded cars.
8. Any disagreement arising between the parties hereto,
from and under the terms hereof, shall be referred to and
decided by arbitratoi^s, one to be chosen by each party, and a
third one by the two thus chosen; a decision of a majority of
them, in writing, shall be final.
Dated and executed in duplicate this 30th day of April,
1873. Signatures and seals of both parties.
Before this contract was executed, the said second part}'
thereto had executed its trust deed, conveying to the Union
Trust Company, of New York, its railroad rolling stock, prop-
erty, rights and franchises, and all property, rights and fran-
chises thereafter by it acquired, to secure $2,500,000 of its
bonds, and default having been made in the payment of
interest thereon, suit against it was instituted by the Union
Trust Company in the Federal Circuit Court for the South-
Fourth District — August Term, 1890. 357
• 1 1 Ml ^1 ■!! !■■ »■■■ I I, M^M ^^B^^M -TT
St. L. & C. R. R. Co. v. E. St. L. & C. R. R. Co.
ern District of Illinois. By the decree of said court H. W.
Sraithers was appointed receiver of all pi^operty of said Cairo
& St. Louis Railroad Company, and on December 6, 1877, as
such receiver, he took possession and control of all the railroad
property of tliat company, and entered upon and used the track
described in said contract from that date until February 1, 1882.
By the decree of said Circuit Court of the United States, said
deed of trust was foreclosed, and in pursuance of the decree
the master in chancery of said court, on December 22, 1881,
conveyed to trustees all the property covered by the deed
of trust, and on January 31, 18S2, said trustees conveyed said
property to appellant
On January 30, 1882, Smithers conveyed to appellant all
his interest in any and all property he had acquired as receiver,
and on February 1, 1882, appellant was put into and took
possession of said railroad property, including the track men-
tioned in said contract, from said receiver, and continued to
use and occupy the said track and the single rail mentioned
and provided for in said contract until August 31, 1883, and
paid as rent therefor to appellee divers sums of money at
successive periods during said time, which were received on
account of renL
It further appears by the testimony of Mr. Coulogue, who
wag the president of appellee's company at the time Smithers
was appointed receiver, and continued as such president until
1880 or 1881, and who executed said contract on its behalf,
that the sum fixed by that contract to be paid for the use of
said track by appellee was not reduced; that applications were
made to him for a reduction or a new contract, which he did
not consent to, but declined to make any reduction or new
contract, until the arrearages under the original contract were
paid; that he made no contract with Smithers in reference to
the rental to be paid under said contract; that he had conver-
sation at different times with some of the oflScials in regard to
a reduction of said track rent; the only arrangement to the
best of his recollection was that they would continue under
the old contract by paying monthly, on account, a certain sum
of $333.33^ per month; that whenever application was made
358 Appellate Courts of Illinois.
Vol. 89.] St. L. & C R. R. Co. v. E. St. L. & C. R. R. Co.
to him for reduction, he invariably told them, " We shall
hold to the old contract until that is settled up."
Smithers testified he had several interviews with Coulogue
touching the reduction of track rent; that he distinctly refused,
from the very beginning of his conversations with Coulogue,
to recognize any liability as receiver for any hack rent due by
the railroad company except so far as the court might order
him to pay. and refused to recognize the existence of the old
contract for the use of the track as in any way binding on liim
as receiver, and refused to pay any such renjfaZ as the old
company had agreed to pay for the use of the track; that no
agreement was reached as to the amount of rental which
should be paid for the use of appellee's road; that he never
authorized tlie payment of more than §1,000 per annum for
the use of said track, and authorized that amount to be paid
in monthly installments, and that it was open to Mr. Coulogue
at any time after Smithers was appointed receiver, to refuse
to allow the latter's trains the right to run over this road;
that he did not agree to extend or carry out any written con-
tract made between appellee and the Cairo & St. Louis Kail-
road Company.
Thomas, who was appellee's cashier from May 1, 1882, to
December 1, 1886, and had charge of its books, test'iied an
account was kept of this track rent on said books, charging
appellant with each month's rent at $25 per day, and impres-
sions of monthly statements appeari?ig in the letter book of
appellee were put in evidence in the handwriting of Thomas
for track rent for each of the months of June, July and Sep-
tember, 1882. The statement for the rent will serve to show
the character of each, and is as follows :
" July Ist, 1882.
St Louis dk Cairo Railroad Co,^
To East St. Loms & Carondelet Railway, Dr.:
July 1. To rent of track for the month of June, 1882, 30
days, at $25 per day, $750."
Thomas testified that, to the best of his knowledge, these
accounts were transmitted to defendant, or some of its officials,
at the time the impressions were taken, during the fii'st days
Fourth District — August Term, 1890. 359
St. L. & C. R. R. Co. V. E. St. L. & C. R. R. Co.
of the month for the month preceding; and on cross-exami-
nation testified he was not positive these monthly bills were
made or presented every month; that he was positive he
presented the bill for the month of May in June, 1882, but
did not recollect positively of liaving presented any others;
that he presented the bills to appellee's cashier, who refused
to pay the bill, and witness received $333 on account; that
when he went to collect at appellee's office, tliey would first
present to him, for his signature, a voucher, as follows:
" ^S^. I/juis {& Cairo Railroad Coinpany^
To E. St. J^ouis & Cakondelet Ky. of East St. Louis, Db.
1882.
Dec. For rent of track between E. St. Louis
and South Junction for the month
ending Dec. 81, 1882 % 333.31
I hereby certify that I have verified all the computations
herein and find them correct.
Examined, found correct and entered. Audit. No. 977.
Approved: Louis Enos, Auditor.
C. Hamilton, General Superintendent.
Received this day of , 188 , from St. Louis &
Cairo Eailroad Company, the sum of three hundred and
thirty-three 3M00 dollars ($333.31), in full of the above
account."
This style of voucher he would refuse to sign and they
would then present the following receipt which he would fill
out and sign :
" Received of St- Louis & Cairo Railroad, three hundred
and thirty-three dollars on account of rent for month of
1882. Geo. K. Thomas, Cashier."
Chas. Hamilton testified he was in charge of appellant's
i-ailroad for Receiver Smithers, prior to February 1, 1882,
when he took charge of it for appellant; that $4,000 per year
was paid monthly, and continued to be paid, after appellant
took charge and until that company surrendered it August
31, 1883; that Mr. Thomas has the acknowledgment of the
only claim for rent, at the rate of $25 per day, ever made on
360 Appellate Courts of Illinois.
Vol. 39.] St. L. & C. R. R. Co. v. B. St. L. & 0. R. R. Co.
him; tliat was dated March 2, 1886; up to that time did not
know tliat the claim would be for $25 per day; was never
presented with monthly bill for tha't rent at that rate, nor for
any amount; the company never made any agreement in rela-
tion to any former contract to pay $25 per day; the business
was done after appellant took possession, precisely the same
as it was done under the receivership; they paid them
$333.33 a month in the same manner. The following corre-
spondence was also used in evidence on behalf of appellee.'
^' St. Louis, May 30, 1883.
St. Louis & Cairo Kailroad Co.
Chas. Hamilton, General Superintendent.
Col. J. Hill, Gen'l Supt., E. St. L. & C. Ky,
St Louis, Mo.
Dear Sir: — Having about completed our own track from
East St. Louis to South Junction, we will not require the use
of your road after the 31st of this montli. As our embank-
ment is quite new, will you kindly permit our connection to
remain untouched a few days, until I am quite safe from
extreme high water, should we have it.
Tours very truly,
C. Hamilton, Gen'l Supt."
" East St. Louis & Carondelet Railway.
Joseph Hill, General Superintendent.
General Superintendent's Office, St. Louis, Mo.,
June 1, 1883.
Chas. Hamilton, Esq.,
Gen'l Supt., St. Louis & Cairo R. R. Co.
Dear Sir: — I have your letter of May 30, 1883, advising
me that you will not require the use of this road after May
31, 1883. My understanding of the agreement under which
your company has used this road is, that it requires ninety
days notice to terminate it, and I shall so construe your notice.
Yours truly,
J. Hill, Gen'l Supt."
Fourth District — August Term, 1890. 361
St
. L. & C. R. R. Co. V. E. St. L. & C. R. 6. Co.
" St. Louis & Cairo Railroad Company.
General Superintendent's Office.
Chas. Hamilton, General Superintendent.
St. Louis, August 29, 1883.
CoL. J. HiLi^ Gen'l Supt., East St. Louis & Carondelet
Railway, St. Louis, Mo.
Dear Sir: — As we have at last gotten onto our own track
l)etween East St. Louis and South Junction and have no
longer use for your road between those two points, and the
ninety days notice, which you claim as due' you, expires on
Friday next, I would like to take up our rail as soon as possi-
ble and get it out of your way. If I take the rails up and put
them in piles of a carload in a place, what w^ould you charge
me for hauling them down to South Junction.
Very truly,
C. Hamilton, Gen'l Supt"
Appellee also read in evidence an impression copy of state-
ment, dated April 30, 1882, for the rent of track from Decem-
ber 1, 1877, to April 30, 1882, charging track rent at twenty-
five dollars per day, and crediting payments received. The
evidence did not show this statement to have been transmitted
to and received by appellant's officers, or any, of them.
Messrs. Pollard & Werner, for appellant.
Mr. A. S. Wilder, for appellee.
Green, J. We have included in the foregoing statement
so much of the evidence as we deem material in the consider-
ation of this case.
It is contended by appellant that the contract of April 3,
1873, between appellee and the Cairo & St. Louis Railroad
Company, was not a lease; that it expired by its terms on the
last day of April, 1878, when the road was operated by the
receiver, who positively repudiated its terms and refused to
pay the contract price for the use of the track ; that when
defendant came into possession of the railroad it continuea to
use plaintiflE's track as the receiver had been doing, without
any agreement, and without anything being said in relation to
382 Appellate Couets of Illinois.
Vol. 39] Sl L. & C. R. B. Co. v. E. St. L. & C. R R. Co.
the U6e of this track or the compensation therefor, and there
is nothing to show tlie defendant knew there was or had been
any written contract. Hence this suit can not be maintained,
because it is brought upon an alleged agreement of defendant
to pay ?25 per day for the use of plaintiff's track, and no
such promise can be implied from the facts and circumstances
proven.
To us it seems the contract possesses all the essential qual-
ities of a lease, and was intended to be such by the parties
executing it. The Cairo & St. Louis Eailroad Company's
road was a narrow gauge road, the northern terminus of
which was East St. Louis. At the date of the contract its
road extended north only to the junction below Cahokia, and
from that point to reach East St. Louis and carry freight and
passengers over the line to its northern terminus, it became
necessary to run its trains over the track of appellee, and also
to have the use of a rail to be placed and maintained between
the rails of appellee's track and thus furnish a narrow gauge.
To meet tiiis necessity this contract was made. By its j)ro-
vision the lessee was given the right to use the track of
appellee and the single rail furnished by the lessee (evidently
intended for its. exclusive use), for the term of five years at
a stipulated minimum compensation of $25 per daj", to be
paid appellee monthly after July 1, 1S73. The use of the
track contemplated by both parties was for the purpose of
enabling appellant to carry passengers and freight for hire on
its trains running upon the narrow gauge track constructed
by putting in said single rail on api)ellee'8 right of way.
To exercise the right to carry on such traffic, the use of
appellee's franchise was necessarily given, because without
this, appellant could not lawfully so carry on its business as
a common carrier over appellee's road. City of Chicago
V. Evans, 24 III. 52.
It thus appears by the record that the use of api)ellee'8
right of way and the exclusive use of the single rail attached
to the soil was given by the contract, and this was a use of
realty in legal contemplation, and the use of appellee's fran-
chise was also intended to be and was included, which was a
Fourth District — August Term, 1890. 363
St. L. & C. R. R. Co. V. E. St L. & C. R. R Co.
use that could lawfully be demised. The general rule is, tliat
not only lands and tenements, but franchises, can be demised.
A railway company may lease its franchise and property by
authority of the Legislature. Taylor's Landlord and Tenant,
8th Ed., Sec. 17.
In Rohn et al. v. HaiTis et al., 130 111. 525, which was a pro-
ceeding for partition, it was held that a ferry franchise, while
strictly speaking not real estate, partook so far of the nature
thereof that it might be partitioned in the same manner as real
])roi)erty, citing 3 Kent, 458, 459, and Dundy v. Chambers,
23 111. 369, in which case the court held a ferry franchise
could only be transferred in accordance with the provisions
of the statute of conveyances. We perceive no difference
between the fi*anchise whereby the right is given a ferry
company to exact and collect toll for the transportation of pas-
sengers and property over water, and the franchise whereby the
right is given to a railroad company to exact and collect com-
pensation for tlie transportation of passengers and property
over the land, so far as the matter of conveyance or leasing is
concerned.
The record discloses that the lessee company entered and
held under this lease until December 6, 1877, when the
receiver took charge of and operated its road over and upon
this narrow gauge track while the lease was still in force and
before the expiration of the live years, and continued such
use and operation after such term expired until he turned
over the possession of all the lessee's property, including the
track, mentioned in the lease on February 1, 1882, to appel-
lant, and paid as rent $333.33 each month, which the lessor
received and receipted for only on account and not in full,
refusing at all times to reduce the rent, or make a new con-
tract. Smithers Ifnew all this, and if he did not wish to pay
the full amount of rent reserved he should have quit the use.
He could not as receiver enter under this contract and con-
tinue to use and occupy the premises as he did, and without
the consent of the lessor either repudiate or cliange the terms
of the contract. Higgins v. Halligan, 46 111. 173; Griffin v.
Knisely, 75 111. 4n.
364 Appellate Courts of Illinois.
Vol. 39.] St. L. & C. R. R. Co. v. E. St. L. & C. R. R. Co.
On February 1, 18S2, appellant, as grantee in tlic deeds of
the trustees and receiver, entered into possession of, and from
that time continued to use and occupy arid run its trains over
the same track, and pay rent therefor in the same manner the
receiver did; accepting without objection receipts on account
and not in full, until it terminated the contract, August 31,
1883, by giving the notice therein [jroyided for. The evidence
shows, as we understand it, that the relation of landlord and
tenant between appellee and appellant existed, and aside from
its legal liability as assignee of a lessee, holding over, to pay
the rent reserved by the terms of the lease, the proof also
shows that in fact appellant used the track, right of way, and
franchise of appellee under and by virtue of the conti*act,
and it was bound to pay the rent according to the terms thereof .
The lease was executed in duplicate, one being retained by
each party. Smithers evidently found the one kept by the
lessee, because he refers to it in his testimony as the old con-
tract. Ilamilton (appellant's superintendent) says he had
charge of the lessee's property for the receiver, and most
probably had seen it. He testified he knew about the pay.
ment of rent during the receivership. He paid it. The
monthly sums paid were the same in amount and paid in the
same manner during the time appellant continued in possession.
Thomas, appellee's cashier, testified that monthly statements,
charging appellant with rent at the rate of $25 per day, were
transmitted to it or its officials, and that he in person presented
such a statement for the rent of May, 1882, to appellant's
cashier in June of that year. That when he went to collect
the rent monthly, at the appellant's office, he would be first
presented with the voucher for a month's rent at the rate of
S333.33 per month, with a receipt for that sum in payment
attached, which he would refuse to sign, but would sign and
deliver a receipt for that amount on account, which was
acce[)tcd. The superintendent says he made out this form of
voucher and that appellee's officer would attach the receipt
for §333.33. He knew then the voucher and receipt in full,
prepared by him, was not signed by appellee's officer, and the
receipt which was so signed and given was itself a notice to
Fourth District — August Term, 1890. 365
St. L. & C. R. R. Co. V. E. St. L. & C. R. R. Co.
liim that a larger sum was claimed for the month's rent by
appellee, and that the sum of $2.5 per day was charged in the
monthly statements transmitted to appellant's officials, which
he says were not presented to him^ but the cashier, to whom
one at least was presented, as Thomas says, was not introduced
to deny having received the same. But, in addition to all this,
the official correspondence between Hamilton, superintendent
for appellant, and Hill, superintendent for appellee, conclu-
sively shows that both understood appellant had been and was
using and occupying the demised premises under and by virtue
of this lease, and not otherwise.
On May 30, 1883, Hamilton, by his letter of that date,
advises Hill that appellant would not require the use of ap-
pellee's road after Mfiy 31st. On June 1, 1S83, Hill replies
to this: " I have your letter of May 30, 1883, advising me
you will not require the use of this road after May 31, 1883.
My understanding of the agreemeiit under which yaur company
has used this road, is, that it requires ninety days notice to
terminate it, and 1 shall so construeyour notice." Hamilton's
understanding is the same, evidently. He does not reply as
he would have done if he understood the old contract, re-
serving a minimum rent of $25 per day, was not binding on
appellant, but continues to use and occupy the demised prem-
ises for it, without further correspondence, until August 29,
1883, when he writes to Hill, informing him appellant had at
last gotten on its own track between East St Louis and South
Junction, and had no longer use for appellee's road between
those points; that the ninety days claimed by Hill would
expire the next Friday, and he desired to take up the rail of
appellant as soon as possible. The right to take up this rail
is given only by the lease, and the notice required to termi-
nate the contract is one of the provisions thereof. The
remarks made concerning the refusal of Smithers to pay the
full rent demanded will apply to the like refusal of appellant.
Having availed itself of all the rights and benefits it acquired
by the lease, undei* the facts proven it is liable for the rent.
The damages assessed were not excessive. Appellant used
and occupied the demised premises for a period of 577 days,
I 39 368
138s 466
366 Appellate Courts of Illinois.
Vol. 39.] St. Louis Brid;re Co. v. Miller.
and paid $6,333.65. The court properly found appellant liable
to pay the minimum rental of $25 per day, amounting to
$14,425. Deducting payments made, a balance of $8,091.35
remained unpaid on September 10, 1883. and interest added
at six per cent on such balance from that date to September
17, 1889, the date of trial, which was properly allowed, makes
a sum greater than $11,004:.64> the amount of judgment.
We think the judgment was warranted by the evidence,
and it is affiimed.
Judgment affirmed.
The St. Louis Bridge Company
V.
Emory Miller.
Personal Injuries — Bridge Company — 'Negligence of—Fifilure to Pro-
vide Guard Hail — Proximate Cause — Examination by Physicians — Con-
tributory Negligence — Evidence — Instructions,
1. Where the evidence in a driven case is conflicting, it is for the jury
to give the weight and credit to that introduced by each party, which th(*y
believe it is entitled to.
2. In an action brought to recover from a bridge company for personal
injuries alleged to have occurred through it-s negligtince, this court holdn
that the evidence justified the jury in finding that the plaintiff was seriously
and permanently injured by frightened mules running against her and pres*;-
ing her against the outer railing of its bridge; that she was in the exerci^
of reasonable care for her own safety when injured; that the negligence of
the defendant in failing to provide reasonably safe and secure barriers to
prevent live stock from crossing into the foot-way, or in the absence of such
barriers, failing to establish and enforce rules for securing and controlling
live stock while being driven across the bridge, occasioned the injury to
plaintiff; that the trial court properly denied a motion on behalf of the
defendant that plaintiff be required to submit to a bodily examination by
physicians; that the point advanced by the defendant that its negligence
was not the proximate cause of the injury is not tenable; and declines to
interfere with the judgment in her behalf.
[Opinion filed February 2, 1891.]
FouBTH District — August Term, 1890. 367
St. Louis Bridge Co. v. Miller.
Appeal from the Circuit Court of St CJair Couuty; the
Hon. B. R. BuERouGHs, Judge, presiding.
Messrs. 6. & G. A. Kobrner, for appellant.
In overruling the motion to have the plaintiff examined by
physicians appointed by the court, there was surely error.
The injuries claimed to have been sustained by the plaint-
iff are not of a character to be apparent; there was no loss of
limb or disfigurement, which could be perceived.
The plaintiff claims a positive injury to the spine, resulting
in nervous disorders and weakness of eye-sight. Admitting,
for argument's sake, the right to recover, the question of the
existence of these disorders and their extent, if they exist at
all, becomes a most prominent question in the case.
Is it consistent witli justice that these questions should be
left altogether to the testimony of the plaintiff and those wliom
she chooses to bring forward as witnesses, or is the defendant
and is the court entitled to the light which an impartial and
scientific examination of the person of the plaintiff could throw
upon this inquiry?
It is shown by the bill of exceptions that the defendant
proposed to have an examination of the person of the plaint-
iff made by persons skilled in medical science, and the plaints
iff refused to allow such examination. Defendant then moved
the court for a rule upon the plaintiff to submit her person to
such an examination for the purpose of having the testimony
of the experts on the trial as to the extent or the permanency
of the injury she claims to have received.
The court denied the motion and we assign this refusal for
error.
On the trial the plaintiff, when on the witness-stand, was
asked whether she was now willing to submit to an examina-
tion by surgeons to be appointed by the court; she again
refused.
The court as well as the parties are entitled to the best evi-
dence obtainable. And if it is in the power of one of the
parties to furnish evidence and he refuses to do so, that fact
is taken against him and he will be compelled to furnish such
368 Appellate Courts of Illinois.
Vol. 39.] . St. Louia Bridgre Co. v. Miller.
evidence. 1 Grcenleaf on Ev., Sec. 37 and 82; City of Frank-
fort V. Isboll, 93 III. 882; 2 Bitshop on Marriage and Divorce,
Sec. 590, and notes; E. R. Co. v. Hinlayson, 18 A. & E. R.
R Cases, 68; R R Co. v. Holland, 122 111. 467; Walsh v.
Sayre, 62 How. ' 334; R R Co. v. Thul, 10 A. & E. R R
Cases, 783.
The power of the court to order snch examination is ad-
mitted in all of these cases. But the best considered case and
one adopted as authority in many of tlie cases above cited,
is the case of Schroeder v. R. R Co., 47 la. 375. We quote
from it:
" Whoever is a party to an action in a court * * * has
a right to demand therein the administration of exact justice.
Tliis right can only be secured and fully respected by obtair-
ing the exact and full truth touching all matters in issue in
the action. If truth be hidden, injustice will bo done. The
right of the suitor then, to demand the whole truth, is un-
questioned ; it is the correlation of the right to exact justice.
It is true, indeed, that on account of the imperfection incident
to human nature perfect truth may not always he obtained,
and it is well understood that exact justice, because of the
inabilitv of courts to obtain truth in entire falsehoods, can
not be always administered. We are often compelled to
accept approximate justice as the best that the courts can do
in the administration of the law. But, while the law is satis-
lied with approximate justice when exact justice can not be
obtained, the court should recognize no rules which stop at
the first when the second is in reach." * * *
" To our minds the proposition is plain, that a proper exam-
ination by learned and skillful physicians would have opened
a road by which the court could have been conducted nearer
to exact justice than in any other way. The plaintiff, as it
weve, had under his control testimony which would have re-
vealed the truth mr>re clearly than any other that could have
been introduced. The course of truth, the right administra-
tion of the law, demand that he should have produced it,"
The court in that case in its opinion fully discuss the objec-
tions against such a proceeding urged by the plaintiff and con-
Fourth District — August Term, 1890. 369
St. Louia Bridge Co. v. Miller.
elude bj holding that in cases of this character it is not only
proper but it is the duty of the court to order an examination,
when requested by the defense, for the purpose of ascertain-
ing the nature, character, extent and permanency of the injury
complained of.
The court below refused the motion on the authority of
Parker v. Enslow, 102 111. 272.
It will be observed, on examination of that case, that the
court would not have been justified in ordering a physical
examination. It was an action ex contractu, and the question
was as to whether the note sued on was given for a good con-
sideration.
The note had been given in settlement of a claim for dam-
ages for a personal injury, and whether the injury was a severe
one or not, permanent or not, did not arise.
The law which controlled that decision was that if the
parties in good faith compromised what was supposed by the
plaintiff a good cause of action, plaintiff could recover on the
note given in settlement.
The court, therefore, evidently paid but little attention to
the question of physical examination. It dismissed the subject
with these words: " Complaint is also made that the court
refused to compel appellee to submit his eyes to the examina-
tion of a physician in the presence of tlie jury. There was
no error in this. The court had no power to make or enforce
such an order.'^
As to the power of the court to enforce such an order and
the manner of enforcing it, we refer again to the case of
Schroeder v. Railroad Co., above cited.
The power of making the order is upheld by the court in
cases prior and subsequent to case in 102. Frankfort v. Isbell,
93 111. 382; R. R. Co. v. Holland, 122 111. 467.
Are we not, in the light of these decisions, justified in call-
ing the reference to this question an obiter dictum not called
for by the question controlling that case and made without
examination of the authorities?
Messrs. Baker & Canby, for appellee.
Vol. XXXIX 24
370 Appellate Courts of Illinois.
Vol. 39.] St. Louis Bridge Co. v. Miller.
It is assigned for error, the court below refused to order
appellee to submit her person to a medical examination by
physicians appointed by the court. This the court had no
power to do. Tlie authorities are not in harmony on tliis
point. In some States it is held the trial court may do this,
and in others not. Our Supreme Court has denied the power.
Parker v. Enslow, 102 111. 272.
There is no pretense in the affidavit, made in support of this
motion, that plaintiff was feigning an injury she had not
received, and there is nothing in the evidence or circum-
stances to justify it.
See on this point, City of Galesburg v. Benedict, 22 111.
App. 114.
In R. R. Co. v. Holland, 122 111., the point was not decided,
as the physicians named in the motion had been allowed to
make an examination of plaintiff before the trial, and the error,
if any, in overruling the motion, was held to be a harmless one.
All that is decided in 93 111. is, that it was the duty of
the court to permit the refusal of plaintiff to submit to cin
examination to be shown to the jury, so that they might give
it such weight as its importance deserved, and this was
allowed in this case. An examination made at the time of the
trial would not have disclosed any external evidence of the
injury. It is an injury to the spine, internal in its character,
and affecting the nervous system in various ways, such as
incontinence of urine, impairment of tlie organs of vision, and
other nervous disordersattendant upon a spinal injury, of which
we complain in this case. It would have been quite easy, no
doubt, for appellant to have got a committee of physicians
and surgeons, like Dr. Kohl, in the employ of railroad cor-
porations, to make an examination of appellee, and then tes-
tify there was in their opinion nothing the matter with her.
The physicians who waited upon her immediately after and
since the injury and who have had an opportunity from
time to time to observe the effects produced upon her system
thereby, are better qualified to speak upon this subject than
others who might be appointed to make a hasty and neces-
sarily imperfect examination. If the injuries complained of
Fourth District — August Term, 1890. 371
St. Louis Bridge Go. v. Miller.
were external in their character, such as a bruise or wound,
the nature and extent of which could be readily discovered
by an examination, there would be some reason for asking
that one be made; but where the injury is internal and hidden,
there is certainly no ground for makinp^ such an examination,
as it would not reveal the injury complained of. It can only
be known by observing its effects and consequences upon the
system from time to time as they develop.
Green, J. Appellee brought this suit against appellant
to recover damages for personal injuries received by her
on the approach of appellant's bridge. The negligence
charged in plaintiff's declaration is, in substance, the failure
to provide a guard rail, balustrade or other barrier between
the footway used by pedestrians crossing upon the bridge
and the roadway provided and used for the passage of teams,
wagons and live stock over the bridge; and in the third count
it is averred that by reason of the absence of such guards, rails
or bannisters it became and was the duty of defendant, in the
exercise of ordinary care, to make and enforce such rules and
regulations for the passage of animals and live stock across said
bridge as would reasonably protect and secure persons crossing
the bridge on foot from injury from such animals and live
stock while being driven across the bridge; charges neglect
of this duty, and it is averred in each count that by reason of
the negligence of the defendant as charged therein, a drove of
loose mules, permitted by defendant to be driven across said
bridge, ran against and upon plaintiff, and pressed and squeezed
her so violently against the north railing of the approach as
to greatly bruise and injure her, and thereby her nervous sys-
tem was greatly shocked and permanently injured and her
spine permanently injured, her right eye hurt, etc. The trial
resulted in a verdict for the plaintiff for $1,800 damages, and
defendant appealed. The first point suggested on behalf of
appellant is, that the verdict is against the evidence. It is
not denied that appellee paid her fare for crossing said bridge
from St Louis to East St. Louis and had proceeded on foot,
upon the footway provided, as far as midway of the north
approach at the east end of the bridge, at a point twenty-five
372 Appellate Courts of Illinois.
Vol. 39.] St. Louis Bridge Co. v. Miller.
feet above the ground; that a drove of not less than twenty-
five mules, which had passed her, became frightened at a
locomotive, turned and ran back, one at least running into the
footway where she then stood; that the south approach was
closed for repairs; that there was no rail or other barrier
between the roadway and footway on the north approach to
prevent the mules from crossing into the footway where
appellee stood. In addition to the uncontradicted facts, appel-
lee testified she was returning from St. Louis to her home in
East St. Louis, across the bridge; that she paid her fare for
crossing, and while on the footway, about the middle of said
north approach, a drove of mules that had just passed her
going down the approach, became frightened and stampeded
and turned and ran up the approach toward lier, and three or
four of them crossed into the footway, where she stood cling-
ing to the outside railing, ran against her and squeezed and
cruslied her against the railing, and thereby her side and back
were injured, her eyesight became impaired and her kidneys
were affected; that she remained at times unconscious during
three or four days after the accident and was confined to her
bed for two weeks by reason of lier injuries; that her healtli
had been bad since the accident and she had been unable to
do her housework; that she had been healthy and her eye-
sight was good before her injury. The testimony of the
physician attending her tended to strongly corroborate her
statement touching her condition and injuries, and he further
testified her injury would permanently affect her nervous
system. A consulting physician, who examined her shortly
after the accident, concurred with the attending j)hy6ician in
his diagnosis and also corroborated appellee in material points
as to the. character and consequences of her injury.
Dr. Ferryman testified he knew the plaintiff; that from her
statement on the stand and the testimony of her physician,
his opinion was that she had concussion of the spinal cord
and of the back; that if the concussion of the spinal cord is
serious it may be permanent; if slight it may pass away in a
short time, but it is liable to leave behind it a train of nervous
disorders that may lead to serious troubles afterward. Two
Fourth District — August Term, 1890. 373
St. Louie Bridge Co. v. Miller.
boarders in plaintiff's -house, who saw her every day, con'ob-
orate her as to her condition on the evening of her injury,
and for three or four days thereafter, and as to the time she
was confined to her bed, and testify to the fact that she had
repeated spells of prostration and sickness thereafter, and be-
fore her injury was a strong, healthy woman. Two ladies
testified also and corroborated plaintiff in material points, and
the girl who worked for plaintiff testified substantially as the
two boarders did. As against this evidence, Bogue, who was
one hundred yards from plaintiff when the mules 8tami>eded
and came back, testified he saw them run back up the approach
and saw them pass plaintiff; did not think they ran into or
against her. Galvin, a bus driver, who was also about one
hundred yards from place where plaintiff stood, and who was
on his omnibus driving west when the mules stampeded, tes-
tified he saw the mules run past her, but they did not touch
her Each of these witnesses admitted one of the mules, at
least, got over into the footway. Young, a bridge watchman,
testified he was on the turn roadway that goes down under
the bridge to the levee, and Bogue called his attention and
informed him the mules had stampeded and there was a lady
on the approach; that he went up to plaintiff and as far as he
could see she was conscious; she might have been unconscious;
if she was he could not see it; she said she was frightened;
said she was subject to heart disease and expected to go home
and be sick for two weeks; did not claim that the mules ran
against her; he walked with her down the approach. Dr.
Kohl heard plaintiff's testimony and that of the physicians on
her behalf and did not agree with them that plaintiff had
suffered concussion of the spine and gave his reasons for his
opinion. It was the province of the jury to settle this con-
flicting testimony and give the weight and credit f^ the evi-
dence introduced on behalf of each party, which they believed
it was entitled to. Doubtless they tookinto consideration the
distance Bogue and Galvin were from plaintiff, the means and
opportunity each had to see and know whether plaintiff was
run into by the mules as she claimed, also her mental and
physical condition immediately afterward and continuing for
374 Appellate Courts of Illinois.
Vol. 89.] St. Louis Bridge Co. v. Miller.
BO long a time, referable to no other apparent canee than the
injury received in the manner she described, and reached
the conclusion they were mistaken and she was not. The
jury saw and heard all the witnesses wliile testifying and had
means thus furnished them, which we have not, to determine
correctly the credibility of each and the weight their testi-^
mony was entitled to.
We think, after capefully examining the record in this case,
the evidence Justified the jury in finding that appellee was
seriously and permanently injured by the frightened mules
running against her and pressing her against the outside rail-
ing, where she liad retreated to avoid them and save herself
from injury; that she was in the exercise of all reasonable
care for her own safety when injured, and the negligence of
defendant in failing to provide reasonably safe and secure
barriers to prevent live stock from crossing into the footway,
or, in the absence of such barriers, failing to establish and
enforce rules for securing and controlling live stock while
being driven across the bridge, occasioned the injury and
damage to plaintiff. It is next insisted the trial court erred
in denying this motion on behalf of the defendant: ''Now
comes the defendant and moves the court for a rule upon the
plaintiff to submit to an examination of her person by medi-
cal experts for the purpose of hearing the evidence oh the
trial of the cause as to the extent or the permanency of the
injury she claims to have received." This motion names no
persons as medical experts nor does it ask the court to name
and appoint the medical experts; but aside from this the
necessity for such examination does not appear. It is not
suggested in the affidavit filed in support of the motion that
such examination is required in order to more fully ascertain
the extent and probable duration of the injury; nor does it
appear there is reason to believe plaintiff feigned or simu-
lated injuries. The only external evidence of injury was a
bump or swelling on the back, which yielded to the remedies
used and disappeared in a short time, and the change in the
appearance of the pupils of the eyes, claimed to have taken
place after the injury. Wo do not deem this error well
Fourth District — August Term, 1890. 375
St. Louis Bridge Co. v. Miller.
assigned. Galesburg v. Benedict, 2fi 111. App. 114; Parker
V. Euslow, 102 111. 272.
It 18 next insisted the injury was caused by want of care on
the part of the persons in charge of the mules, and the neg-
ligence of defendant in failing to provide reasonably safe and
sufficient railing or other barrier between the roadway and
footway to protect jTcdestrians, was not the proximate cause
of plaintiff's injury, hence defendant is not liable to her. This
contention is not tenable under the rule announced in Vil-
lage of Carter vi lie v. Cook, 129 111. 162.
The fourth point suggested is, thdt plaintiff knew the
approaches were not properly constructed, by reason of hav-
ing no high railing between the footpath and roadway, and
that therefore it was dangerous for foot-passengers ; that this
was a manifest danger, known to her, because she had crossed
the bridge many times, and this known danger she could have
avoided by using a street car or ferry boat, or a stair-case at
the approach, which plaintiff testified she knew nothing of.
No accident occurred to plaintiff, or to any one else to her
knowledge, except the one in question here, by reason of the
absence of the rail or barrier. The bridge company invited
foot-passengers to use this footway by keeping it open for
their use. It took toll of plaintiff, who was a foot-passenger;
she had a right to rely on their legal obligation to use reason-
able care in protecting her from injury while crossing the
bridge, or respond in damages for injury occasioned by
failure to perform such duty. The use by plaintiff of the
footway upon the approach, under the facts disclosed by the ,
record, was not contributory negligence on her part in bring-
ing about her injury, or absolving defendant from liability.
Fifth point is, that the want of a railing separating the side-
walk from the roadway is not negligence jper se. It is not
necessary to an affirmance of this judgment that we should
hold such omission negligence per se. The question before
the jury was, whether, under all the facts and circumstances
proven, it was negligence, creating liability, for defendant in
this case to omit the erection of such railing. The jury evi-
dently found it was, and the proof justified the finding. The
376 Appellate Courts of Illinofs.
Vol. 39.] Muddy Valley Miniug & Mfg. Co. v. Phillipe.
last point suggested is the giving certain instrnctions for
plaintiff, and refusing to give certain instructionp requested
on behalf of defendant. The ruling of the Circuit Court in
this regard is assigned for error. An examination of tho
evidence and all the instructions given and refused, leads us
to the conclusion that the jury were fullj and fairly instructed
by the court, and that the refused instructions ought not to
have been given.
No error requiring the reversal of the judgment appearing
to us, it is affirmed.
Judgment affirmed.
89 876
1928 J^ 44
89 a^O
10^ cy44 Muddy Valley Mining & Manufactuking Com-
pany
V.
Herman Phillips.
Master and Servant — Negligence qf Master — Personal Injuries — Ex-
plosion of Gas in Mine — Miners* Lamps — Ventilation — Act qf 1681 —
Evidence — Instructions .
1 . It ift for the jury to pay from the evidence in a given case whethpr
the admitted failure of the defendant to perform his statutory duty was
wilful.
2. In an action by an employe to recover for personal injuries suffered
through the alleged negligence of his employer, a mining corporation, this
court holds that through the wilful neglect of its statutory duty, a duncerous
accumulation of gas took place, whereby the plaintiff was injured, and
declines to interfere with the verdict in his behalf.
[Opinion filed February 2, 1891.]
Appeal from the Circuit Court of Jackson County; the
Hon. O. A. Habker, Judge, presiding.
Messrs. Green & Gilbert, and Toungblood & Barr, for
appellant.
FouE'^ii District — August Term, 1890. 377
Muddy Valley MiDing & Mfg. Co. v. Phillips.
Mr. William A. Schwaktz, f v^r appellee.
Gbeen, J. Appellee was employed in the coal mine
operated by appellant and was burned and seriously injured
by an explosion of gas in its mine. The gas exploded by
taking fire from the lighted lamps w6rn in the caps of appel-
lee and another miner, whom he was then assisting to move
a platform used to catch the coal and prevent it "^rom ialling
into the mud and water, as it was blasted from the side of the
entry and to provide a more convenient means for handling
and loading the coal. This platform was made of planlis, and
was moved as the work of blasting coal progressed. Appel-
lee was employed to work by the day, and on the morning
he was injured had been working about fi'.i^y or sixty yards
distant from the place of accident, loading rock, and had gone
tor oil for his lamp to the oil room, near said place; had filled
his lamp and started back when he was called by the miner
to assist in moving the platform, which he did, and while so
engaged the explosion occurred. Tiie foreman of appellant,
in charge of the men, had told appellee to assist any of them
when assistance was needed, and he was acting in compliance
with this order when injured. To recover damages for his
injuries, appellee brought this suit, and judflrmcnt for $638
and costs was entered in his favor, to reverse which this
appeal was taken. The right to maintain this suit is based
upon these provisions of the act in force July 1, 1887: "The
owner, agent or operator of every coal mine, whetlier oper-
ated by shaft, slope, or drift, shall provide and maintain for
every such mine a good and sufficient amount of ventilation
for such men and animals as may be employed therein, the
amount of air in circulation to bo in no case less than 100
cubic feet for each man and 600 cubic feet for each animal,
per minute, measured at the foot of the down cast, * * *
and said volume of air shall be forced and circulated to the
face of every working place throughout the mine, so that
said mine shall be free from standing powder-smoke and gases
of every kind. * * * All mines in which men are em-
ployed shall be examined every morning by a duly authorized
378 Appellate Cottrts of Illinois.
Vol. 39.] Muddy Valley Mininif & Mf<r. Co. v. Phillips.
agent of the proprietor to determine whether there are any
dangerous accumulations of gas, or lack of ventilation or
. obstructions to roadways or any other dangerous conditions,
and no person shall be allowed to enter the mine until such
examiner shall have reported all the conditions safe f'^r
beginning work."
The '"vidence shows the mine of defendant was operated
by shaft; that on November 15, 18S8, defendant leased the
mine from William P. F. llid<^^* and continued to operate it
from that date up to and at the time of appellee's injury on
April 5, 1889. Forty men and three mules were then
I employed; rooms had been opened, coal was mined, trans-
ported to the shaft, hoisted to the surface and several car
loads were shipped daily; and Marion C. Wj'i;;ht, the presi-
dent of defendant company, testified said company was operat-
ing the mine April 5, 1889; such being the facts, the statute
imposed upon the defendant the duty to provide the given
amount of air per minute, measured at the bottom of the
down cast, and force and circulate it to the face of every
working place throughout the mine and by this means free
the mine from standing powder, smoke and gases of every kind.
It was also defendant's duty, under the statute, to cause its
authorized agent to examine the mine every morning to
determine whether there were any dangerous conditions, or
dangerous accumulations of gas and report all the conditions
, safe for beginning work, and until that was done not to allow
appellee or other employes to begin work in the mine. The
performance of the statutory duties thus imposed was required
to effect the purpose of the act : " To provide for the health
and safety of persons employed in coal mines;" and this case
furnishes an examp le, as we think, of the necessity for such
legislation and the enforcement of the law. Defendant failed
to perform either of the duties required, and the jury were
justified in finding by the evidence that the failure by defend-
ant to comply with said provisions was wilful and caused the
accident and injury to appellee. The defendant knew gas
was usually found near and about a fault, as it is termed. It
was from such a place the gas came, and he knew the fault
Fourth District — August Term, 1890. 379
Muddy Valley Mining & Mfg. Co. v. Phillips.
was in the entry at the time, and near the place appellee and
tlie man he helped were at work. Other witnesses testified
to the presence of gas in tlie coal there; moreover an instru-
ment to detect the presence of ^as was at the mine, but not
used until after the explosion, and was then put in use: After
the explosion air was forced and circulated into said enti-y by
a method that would have been practicable before the explo-
sion and would have probably freed the entry from gas and
prevented the accident In. view of all the facts proven, it
can not fairly be contended that ':he admitted failure by defend,
ant to perform the statutory duties was not wilful. The jury
80 found, and it was a question to be determined by them
from the evidence. Hawley v. Daily, 13 111. App. 394.
The court gave the jury four instructions on behalf of
plaintiff. The first informed the jury what duties were
imposed upon the owner, agent or operator of a coal mine
by the statute, which was correctly quoted; but the criticism
made by appellant's counsel is that it omits the mention of
the clause : '* For an injury to person or property occasioned
by any wilful violations of this act, or wilful failure to com-
ply with its provisions, a right of action shall accrue." If
this instruction had called for a finding against defendant,
it would have been defective because of the omission; but as
given, stated the law correctly, and was not calculated to mis-
lead the jury. The remaining three instructions relate to the
damages and the facts proper to be considered by the jury in
assessing the same, in case defendant was found guilty, and we
see no serious objection to either of them. It is further con-
tended the court erred in refusing to give seven instructions
requested on behalf of appellant. The first of these had
already been given in defendant's sixteenth instruction to the
jury. The fourth refused instruction had also been given in
defendant's eighth instruction to the jury. The fifth refused
instruction was also given in defendant's fourth instruction to
the jury and the seventh refused instruction was given in
defendant's fifteenth instruction to the jury. The third and
sixth refused instructions were properly refused. The prin-
ciple embodied in the second refused instruction is sufficiently
39 'S80
60 61?
39 380
70 043
380 Appellate Courts of Illinois.
Vol. 39.] Lusk v. Parsons.
'I ■ ■
stated in several of the instructions given for defendant,
although not in the same form, and in the seventeen instruc-
tions which were given on its behalf to the jury, no legal
proposition stated in the form most favorable to defendant
and that could have been in any t^ianner applicable, seems to
have been omitted. Our conclusion is, that the evidence
establislied the facts that the place of injury was in a mine
then being operated by defendant; that appellee was a man
then employed in the mine by defendant and was entitled to
the protection afforded by the performance of the duties
imposed by the statute (Coal Kun Co. v. Jones, 19 111. App.
371); that defendant wilfully failed to perform its statutory
duties and hence there occurred a dangerous accumulation of
gas which took fire and caused the accident and injury to
plaintiff charged in his declaration. We perceive no error
requiring the reversal of the judgment and it is af&rmed.
Judgment affirmed.
ISOM W. LusK
V.
Lewis B. Parsons.
Practice — Bill of Exceptions — Absence of,
1. The rulings of the trial court upon questiona ariRinflr in the progrem
of a given trial must be preserved in a bill of exceptions duly authenticated;
likewise the objections and exceptions; otherwise this court can not review
such rulings, nor can the party excepting thereto have the benefit of such
exceptions herein.
2. Recitals of the clerk of the trial court in the trans^cript of the rt^cord
as to what was done in a given case, are extra-official and of no legal effect.
[Opinion filed February 2, 1891.]
In error to the County Court of Clay County; the lion.
B. D. MoNROE; Judge, presiding.
Fourth District — August Term, 1890. 381
Lusk V. Parsons.
Messrs. Chesley & BorLES and Q. A. Hoff, for plaintiff in
error.
Mr. EuFus Cope, for defendant in error.
Green, J. There is no bill of exceptions in this record,
hence we can not consider and pass upon the points presented
on behalf of plaintiff in error, touching the alleged errors of
the trial court in sustaining defendant's demurrer to the evi-
dence, overruling plaintiff's motion for a new trial and enter-
ing judgment for defendant. The rulings of the court below
upon questions arising in the progress of the trial, must be
preserved in a bill of exceptions and also the objections and
exceptions; otherwise we can not review such rulings, nor can
the party excepting thereto have the benefit '^f such excep-
tions here. The bill of exceptions authenticated by the sig-
nature and seal of the presiding judge is the only proper
source to which we can resort for information concerning the
actions and rulings of the court during the trial, the nature of
the objections a: d exceptions thereto and the reasons given,
if any, for such objections. When thus authenticated and
filed the bill of exceptions becomes a part of the record. In
the transcript of the record in this cause we find recitals that
there was a demurrer to plaintiff's evidence considered by the
court, and the jury discharged, a. finding and judgment for
defendant, then a motion made by plaintiff for new trial over-
ruled and exception by plaintiff to the overruling of such
motion. It is immaterial that such recitals are made by the
clerk; they are matters that can not become a part of the
record unless they are incorporated in a bill of exceptions and
the recitals by the clerk in that respect" are extra-official and
of no legal effect. Kepeated decisions of the Supreme Court
fortify the views above expressed and announce a rule we
are not at liberty to disregard. Among the latter of such
decisions will bo found Gould v. Howe, 127 111. 251; Bank
of Lawrence County v. Le Moyne, 127 III. 253. The judg-
ment of the County Court is affirmed.
Judgment affirmed.
382 Appellate Courts of Illinois.
Vol. 39.1 Stever v. Morris.
Theodore Steyer, Guardian,
V.
William S. Morris, Guardian ad Litem.
Guardian and Ward — Funds of Ward — Failure to Keep at Interest —
Sec, 22, Chap, 64, Starr <^ C. ///. Stats.
1. In the absence of evidence to the contrary, it will ba presumed
that a guardian might have kept funds of his ward at interest.
2, Where such funds continue to be in excess of expenditures in behalf
of the ward, failure to so invest at reasonable intervals will render the
guardian liable for interest.
8. The e'state of a ward should not be charged for legal services ren-
dered his guardian, in a controversy arising through such guardian's fault.
[Opinion filed February 2, 1891.]
Appeal from the Circnit Court of Pope County; the Hon.
KoBEKT W. McCaetnby, Judge, presiding,
Messrs. Rose & Sloan, for appellant.
It was strenuously claimed by the appellee in the court
below that no matter how small the amount of money in the
hands of the guardian or for what purpose it might be needed
for the care and support of the ward, that still the guardian
was compelled to loan the same. And although tlie guardian
may have honestly thought, and had good reasons to believe
(as in the case at bar), that the small amount on hand was lia-
ble to be called for at any time in tlie care of his ward, yet it
should be loaned, and in support of this theory cited Hughes
et al. V. The People, ill 111. 458; also, Mclntyre v. The Peo-
ple, 103 111. 142; contending tliat by these decisions the
statute was mandatory as to the loaning of money, however
small the amount or however necessary it might be to use the
same during the current year for the support of the ward.
We hold that a careful readmg of these cases, cited by the
appellee in the lower court, sustain our theory of this case,
viz., that the guardian is only liable for interest on such
FouFwTH District — August Term, 1890. 383
Steyer v. Morris.
sums as may not reasonably be needed for the support of his
ward during the current year. These decisions show that the
statute does not change the common law as to the duty of the
guardian to loan any balance in his hands not needed or likely
to be needed for the support of his ward, but that the manda-
tory part of the statute is. that the guardian " shall loan tlie
money on the approval of the court," These decisions do
not sustain the theory of appellee in this case, baton the con-
trary show how unreasonable such theory is. We call atten-
tion to the following expressions in opinion cited above, 103
111. 142 : *' At common law it was the duty of the guardian
to loan the money of his ward (not needed for the present use
of his ward)." * * * "If the guardian kept such moneys
in his possession without use, when, by the exercise of ordinary
care he might prudently have put the same at interest, he is
chargeable with interest upon the same." Do we understand
from this that the guardian may not say, as did the guardian
in this case, " I have a small balance now that may be needed
at any time for the care of my ward, and I can not prudently
loan the same ? " Or what is meant by the last clause of Sec.
22, Chap. 64, Starr & C. 111. Stats., where it says " the guard-
ian shall be chargeable with interest upon any money which
he shall wrongfully or negligently allow to remain in his
hands," etc. The failure to loan the ward's money must be
wrongful or negligent before the guardian can be charged with
interest. Will any prudent man say, after reading the uncon*.
tradicted evidence of Steyer, the guardian, in this case, that
the keeping on hand of a small balance for the use of his
ward was either wrongful or negligent ? The report made by
the guardian from time to time, his evidence, and in fact
everything in this record, show that he was a careful, pains-
taking guardian, at all times looking after the interest of his
ward, as in the case of collecting insurance, and striving to
increase her rents, as shown from his evidence. And if he
was looking after his ward's welfare and interest, and as a
prudent man, kept a small balance on hand to meet contin-
gencies, shall he be made to pay interest on these amounts
because the contingency did not arise ? If so, then if the
384 Appellate Courts op Illinois.
Vol. 89.] Steyer v. Morris.
ward had become eick/or if, as he says in his evidence, the
board had been increased so that every dollar would have been
expended, still, under the construction contended for, he would
liave been liable for interest.
If a guardian act in good faith, and as a reasonably prudent
man would act under the circumstances, then he is not liable
for a mere error of judgment Hughes v. The People, 10
111. App. 1^8, and authorities there cited.
If the guardian has an excuse for failure to loan his
ward's money, that is reasonable, lie will not be chargeable
with interest. Sec. 22, Chap. 64, Starr & C. 111. Stats.; 1
Parsons on Contract, 5th Ed., 122, 136; Bennett v, Hamtiny
87 111. 36.
And the guardian may retain on hand a proper surplus to
meet current and contingent expenses, and also sums which
are too small to be wisely invested. 3 Wait's Actions and
Defenses, 560, paragraph 4, and authorities there cited; and
also 4 Wait's Action and Defenses, 141, paragraph 17; also
9 American Encyclopedia of Law, 117, note 3, and authorities
there cited; also note 1, page 119, Idem., and cases cited;
Gott V. Gulp, 2 American Probate Reports, 69.
Mr. W. S. MoHRis & Son, for appellee.
We insisted and now insist, that Sec. 22, Cliap. 64, Starr &
C. 111. Stats., as it now stands in the book, and as it is amended
by the act of June 8, 1887 (Vol. 3 of Starr & C. 111. Stats. 325),
will bear no other construction than that it is mandatory.
Justice Dickey, in Mclntyre v. The People, 103 111. 147,
says: "Were it not for this proviso it might be plausibly
suggested that the primary provision that the security should
be approved by the court, is merely directory; but when it
is said that such loans may be extended without such approval,
it is necessarily implied that the original loan by the guardian
must be made with the approval of the court This being
the mandatory requirement, the guardian making such loans
without complying with the statute, makes the same at his
own risk, and must be treated as having undertaken to assume
the position of a guarantor.'*
FourwTH District — August TePwM, 1890. 385
Steyer v. Morris.
" It shall be the dnty of the guardian to put and keep his
ward's money at interest."
This is mandatory.
''The guardian shall be chargeable with interest npon any
money which he shall wrongfully or negligently allow to
remain in his hands uninvested after the same might have
been invested."
This also is mandatory.
Justice Mulkey, in Hughes v. Tlie People, 111 111. 460-1,
of the opinion referring to the Mclntyre case, says: "That
court in effect held that the statute requiring a guardian to
keep his ward's money at interest upon good security, to be
approved by the County Court, is mandatory." "If lose
occurs the guardian can not exonerate himself by showing he
acted in good faith." "It is also objected the guardian should
only be charged with simple interest. We do not think so;
by putting out the money in the manner he did in violation
of an express provision of the statute, he placed it beyond
his power to make it bring compound interest, as it would
otherwise have done if properly loaned. This violation of
the statute was knowingly done, and therefore wilfully done."
So far back as 1864 the Supreme Court, in Bond v. Lock-
wood, 33 111. 221, the court, commenting upon the statute of
1845, say: "In this State the statute requires the letting to
be for one year, and that the interest shall be added to the
principal at the end of each year. The appellee neglected to
discharge his duty in tliis respect, and for such neglect of
duty he would have been charffeable with interest after a
reasonable time had elapsed in which to make the investment.
Six months from the receipt of tlie money lias been deemed
a reasonable time for that purpose."
From these opinions we take it the section of the statute
referred to in the argument of appellant is mandatory in all
its parts. Tlie failure to loan the ward's money is negligence,
and this negligence is the violation of a mandatory statute —
negatively, it is true, but it is none the less a violation,
Gbebn, J. The questions here presented arise under
386 Appellate Courts of Illinois.
Voii. 39.] Steyer v. Morrig.
Sec. 22, Chap. 64, Starr & C. III. Statutes, imposing the
duty upon a guardian "to put and keep his ward's money
* at interest." Exceptions were taken by both parties to the
decree below, and error is assigned by appellant for allowing
interest upon uninvested funds of the ward. Appellee
assigns for cross-errors the allowance of $20 attorney's fee,
failing to charge the guardian with interest on balances as
shown by his reports, and in considering the evidence of
Steyer. Appellant's counsel contend, nnder the facts proven,
it was error to allow any interest upon uninvested balances in
the hands of the guardian, because he did not wrongfully or
negligently fM to YemvQ^i the same, but held the same to
meet anticipated necessary expenditures for the caro and
maintenance of his ward, taxes, insurance and repairs. We
can not sustain this contention. The record does not disclose
any reason preventing appellant from loaning the ward's
funds, and unless the contrary appears, the presumption is lie
could have done so. Appellant Iiad the use of said funds
and the receipts wjere always in excess of the expenditures
every year, from the time he was appointed, in April, 1878,
up to July 9, 1888. By his report of September, 1878, the
balance in his hands was $155.36; by report of July, 1879,
$108.96; by report of July 19, 1880, $143.62; by next
report, May 21, 1883, $133.49; by next report, May 18, 18S5,
$108.42; by the report of August 16, 1886, $145.98, and by
the report of July 9, 1888, $96.70. With these facts, estab-
lished by appellant's own reports, and the other facts above
mentioned, also appearing, the duty of appellant to put and
keep his ward's money at interest, as required by said Sec.
22, is quite apparent, and failing to perform such duty he
must be held liable for interest on such money after the lapse
of a reasonable time allowed him to efiFect the loaning thereof.
Rowan v. Kirkpatrick et al., 14 111. 1; Cummins v. Cum-
mins, 15 111. 33; Bond et ux. v. Lockwpod, 33 111. 213; Gil-
bert V. Guptel, 34 111. 112; Mclntire v. The People, 103 111.
142; Wadsworth v. Connell et al., 104 III. 369. The error
is not well assigned. The two cross-errors we shall notice
are well assigned.
Fourth District — August Term, 1890. 387
Steyer v, Morris.
It was error to allow $20 attorney's fees as a credit to
appellant. The services were rendered on his behalf in con-
testing the exceptions to his final report, among which was
the omission to charge himself with any interest upon unex-
pended balances held by him, and this exception was well
taken. The litigation was occasioned by his fault and the
ward's estate should not be charged with the services of his
attorneys in the Connty Court rendered for himself alone.
The Circuit Court, by its decree, allowed this fee and found
the balance due the ward to be only $38.82, and the court
also refused to charge appellant with interest on balances
shown by his reports. This was error. We have examined
the record and are satisfied that, commencing with the bal-
ance of $155.36, reported September 17, 1878, and computing
the interest on it and subsequent balances in his hands up to
June 11, 1889, the amount due the ward, after allowing all
just credits, is at least $114, the sum for which, with interest,
judgment is asked on behalf of appellee. The order and
decree of the Circuit Court is reversed, except so much
thereof as orders the costs of the Probate Court to be taxed
against the estate of Amelia Keller, and paid by the guardian
ad litem out of assets in his hands, and except also so much
thereof as orders said Theodore Steyer to pay the cost in the
Circuit Court in this case; and the cause is remanded with
directions to the Circuit Court to enter an order and decree
that said Theodore Steyer pay to W. S. Morris, guardian ad
litem of Amelia Keller, the sum of $124.26, and the costs of
the Circuit Court in this case, and in said order and decree
also provide that when said Theodore Steyer shall have so
paid the same as herein ordered, to said W. S. Morris and to
the clerk respectively of the Circuit Court and to the clerk
of this court, the costs of this suit in this court, and shall
deliver proper and sufficient receipts, evidencing such pay-
ments, to the said County Court of Pope County, he shall
be discharged from further liability as guardian of said
Amelia Keller.
Reversed injpart and remanded with directions.
388 Appellate Courts op Illinois.
Vol. 39.] St. L., A. & T. H. R. R. Co. v. Walker.
St. Louis, Alton & Terre Haute Railroad Com-
pany
? 3881 V.
39 8gQj James B. Walker.
112 •422|
Bnilroada — NegUgence of— Injury to Stock — Evidence — Instructions.
\. Where in a giyen case the evidence is sharply conflicting upon mate-
rial and vital questions of fact, the jury should be accurately instructed,
and the instructions should be based upon the evidence.
2. In the absence of evidence going. to show that a witness stands in
fear of being discharged by his employer, a p<nrty to a given suit, unless he
testifies favorably to the latter, an instruction should not be given based
upon such assumption.
[Opinion filed February 2, 1891.]
Appeal from the Circuit Court of Williamson Countv: the
Hon. George W. Young, Judge, presiding.
Messrs. Clemens & Warder, for appellant.
Messrs. Duncan & Rhea, for appellee.
Green, J. This suit was commenced by appellee in a jus-
tice's court to recover damages for injury to his stock by
appellant's train, alleged to have been caused by the negli-
gence of its servants in managing and running said train. The
cause was tried on appeal in the Circuit Court and a verdict
and judgment for $100 in favor of plaintiff resulted, and to
reverse this judgment defendant appealed. The horses belong-
ing to plaintiff were grazing in an open space half a mile west
of a crossing over defendant's road, and as defendant's train,
running east, passed the horses, they started and ran east in
the inclosed public highway, parallel with the train, some-
times ahead and at times in the rear of or parallel with the
engine, until they reached a point where the highway curved
south, and turning at this point, continued to run toward the
I
^
Fourth District — August Term, 1890. 389
St. L., A. & T. H. R. R. Co. v. Walker.
crossing, over which two of the horses passed in front of tho
engine. The other horse was either struck by the engine or
ran against the side of it and received the injuries resulting
in its death. The evidence was sharply conflicting upon the
material and vital questions of fact, and in this state of the
proof the jury should be accurately instructed and the instruc-
tions should be based upon tho evidence. Several of the
instructions given for plaintiflE were not accurate and were
calculated to mislead or prejudice the jury to the injury of
the defendant. The sixth instruction draws especial attention
to defendant's witnesses and their relationship to defendant,
and this is supplemented by the seventh, as follows : " If yon
believe from the evidence that any witness has testified under
an influence of fear of being discharged by his employer or
if any have manifested any personal feeling, prejudice or
bias, one way or the other, such fact or facts may be taken
into account by you in determining the degree of weight to
be given the testimony of such witnesses; and in such case
you have the right to judge of the effect, if any, likely to be
produced upon the human mind by such feelings or motives
on the part of a witness — may tend to warp his judgment or
pervert the truth, and after applying your own knowledge of
human nature and of the philosophy of the human mind to
the investigation of the subject, are to judge of the weight
which ought to be given to the testimony of such witness,
taking the same in connection with all the evidence in the
case." Omitting all other criticism of this instruction, there
was no evidence that the witnesses for defendant entertained
any fear of being discharged or were influenced by such fear.
The only witnesses for defendant were its employes, and no
employe of plaintiff testified; hence that part of the instruc-
tion— " If you believe from the evidence that any witness has
testified under the influence of fear of being discharged by
his employer," was not based on any evidence and is aimed at
defendant's witnesses only. The effect of the instruction was
to create prejudice and invite the jury to view with distrust
their testimony. Instructions of this character have been
condemned frequently by our Supreme Court, and among the
390 Appellate Courts of Illinois.
Vol. 89.] Ve^ten v. Wallace.
later cases announcing tlie rule that instrnctioHS should be
based upon the evidence and should be accurate where the
evidence is conflicting, as in this case. See City of Sterling
V. Merrill, 124 III. 522; C, R I & P. Ky. Co. v. Felton, 125
111. 458; McQinnis v. Fernandes, 126 111. 228; Holloway v.
Johnson, 129 111. 367; Wilbur v. Wilbur et al., 129 111. 392,
For the error in giving the sixth and seventh instructions
on behalf of plaintiflE below, the judgment is reversed and
the cause remanded.
Heversed and remanded.
Mary Vetten
V.
John Wallace.
Bastardy^Suppovt of Child — Recovery for— Married Woman — Plead-
ing,
1 . At common law the father of a bastard child was under no obliga-
tion to support the name. The liability is statatory. and exists only when
the mother is an unmarried woman.
2. The doinjT, or consequence of an tmlawf ul act, can not be made the
consideration of a contract.
3. The presumption is that a child born in wedlock is legitimatdi and
this presumption the mother will not be heard to deny.
4. An alleg^ation that a certain person is married is the same as one set*
ting forth that he is lawfully married.
5. Where, in an action by a married woman to recover for the snpport
of an alleged bastard child, from the father thereof, the defendant showed
by his plea that the plaintiff was the mother of the same, and had at the
time of its birth a husband, such plea effectually meets an allegation in
the declaration that defendant was the father.
[Opinion filed February 2, 1891.]
In ebbob to the Circuit Court of St. Clair Count v; the
Hon. B. R. B0EEOUOH85 Judge, presiding.
PlaintiflE in error brought this suit and in her declaration
averred that defendant in error was the father of a bastard
Fourth District — August Term, 1890, 391
Vett*>n V Wallace
child of the age of two years in March, J 889, and that he
proposed if plaintiff in error would feed, clothe and care for
said bastard child, he would pay her what it was reasonably
worth; that she accepted his proposition and did feed, clothe
and care for the child for a period of twenty-five months and
that it WHS reasonably worth $10 per month, which sum the
defendant in error refused to pay, etc.
The defendant pleaded the general issue and this special
plea: " And now comes the defendant, and for further plea in
his behalf, says, actio non, for that he says the plaintiflP in
the above entitled cause, the said Mary Vetten, is the mother
of the child mentioned in said declaration and alleged to be a
bastard, and the said plaintiff is now and was at the birth of
said child, a married woman, having been on, to wit, the 11th
day of March, 1873, in the county of Madison, in the State
of Illinois, married to one Henry Koch, and that the marriage
relation still exists between the plaintiff and the said Koch,
and this the defendant is ready to verify."
A demurrer was interposed to this special plea, which was
overruled by the trial court, and the plaintiff electing to stand
by her demurrer to this plea, judgment was entered on demur-
rer for defendant. Plaintiff brings the case to this court and
assigns as error the overruling the demurrer to the special
plea.
Mr. William J. Clucas, for plaintiff in error.
We concede that at common law a married woman was not
a competent witness to prove non-access by the husband, but
our statute declares that " no person shall be qualified as a
witness in any civil action, suit or proceeding, etc., except as
hereinafter stated, by reason of his or her interest in the event
thereof as a party or otherwise," etc Sec. 1, Chap. 51, Starr
& C. 111. Stats.
We contend that this statutory provision changed the com-
mon law rule, and that a married woman is now a competent
witness, and may by her own testimony bastardize her child
or prove the non-access by the husb.md.
•In Cuppy v. The State, etc., 34:Ind. 389, which was a pros-
392 Appellate Courts of Illinois.
Vol. 89.] Vetten v. Wallace.
ecution for bastardy, the relatrix was a married woman
residin^^ with her husband; she was permitted to prove non-
access by the husband, etc. The court said : " A witness
declared competent by statute is to be regarded as any other
wituesfs, and restrictions imposed by the comnion law can not
be applied as restricting her testimony in the face of tlie
express letter of the statute." Starkie on Evidence, 217.
But be tliat as it may, the solution of the question does not
necessarily arise in this case, for the reason that the testimony
of the plaintiff in error is not needed.
It is a rule in pleading, that what is alleged by one party in
his pleading and not denied by the other, is considered as
admitted; hence, the charge in the declaration as aforesaid,
and its admission by defendant, made out plaintiff's case
without resorting to her or otlier testimony to prove the alle-
gations in the declaration, and the absence of the husband for
more than ten years previous and up to the time the child
was born. The child being a bastard, and defendant its father,
being admitted of record, the plea to prevail should have
alleged tliat plaintiff had been lawfully married.
It may be true that plaintiff was married to Koch as stated
in the plea, and yet such marriage not been lawful; for instance,
the husband might have been a married man at the time of
the marriage with plaintiff; if so, surely the child in question
is a bastard.
The plea fails to allege that plaintiff was lawfully married;
such allegation of lawful marriage is essential and is required
in a bill for divorce and all other pleadings where a marriage
is in question. Bishop on Marriage and Divorce, Vol. 2, Sec
331.
Surely, the allegation ought to be in a plea, and if denied,
must be sustained by proof to make stich plea a defense, if a
defense at all; the lawful marriage not being alleged in the
plea, the presumption (being against the pleader) is that the
marriage was not lawful, and tJierefore the plea no defense,
and for that reason, if none other, the demurrer ought to have
been sustained.
It is said that a bastard is " -filivs nxdlius^^ and therefore
Fourth District — August Term, IbJO. 393
Vetten v. Wallace.
not entitled to support from anj man. Whatever the rnle
may be where there is no proof to identify the father, it is
certain that the rule does not apply to the facts disclosed in
this cause, for. here wo have tlie undisputed facts: First, that
the child is a bastard; second, defendant's admission that he
is its father.
The facts admitted, the law of nature, as well as the law of
the land alike, require the putative father to support and
maintain his minor child. In Glidden v. Nelson, 15 111. App.
297, the court say: "But upon the strength of the natural or
moral obligation arising out of the relation of the putative
father to his child, an action at common law lies for its main-
tenance and support upon an express promise." Wiggens v.
Keiser, 6 Ind. 262, is a case in point.
In Todd v. Weber, 95 N. Y. 181 (see American Reports,
Vol. 47, page 24), the court says: "Indeed, it has never yet
been held that there was anything illegal in an undertaking
by a putative father to support his bastard, or pay a sum of
money in consideration of such support being furnished by
another, though that other person was the motlier of the
child; upon principle and authority such a promise must be
regarded as valid.
Messrs. Koernkr & Horner, for defendant in error.
At common law a bastard child was " nullius UliuaP and
could inherit from neither its father nor its mother.
In this State, by statute, it is capable of inheriting from the
mother, and through her.
The mother is given the custody, care and nurture of the
child, and she can recover the custody from the father and
can inherit from the child.
A father can not inherit from his bastard oflFspring.
To relieve the mother. from the entire burden of supporting
her illegitimate offspring, and to prevent the child from
becoming a charge upon the county authorities, the Illinois
statute provides. Sec. 1, Chap. 17, Starr & C. 111. Stats., that
an unmarried woman who shall be pregnant, or delivered,
etc., shall proceed by an action quasi criminal in its nature,
394 Appellate Courts of Illinois.
Vol. 39. Vetien v. Wallace,
and compel the putative father to support the child forr period
of nine years, requiring a bond as security for a compliance
with tlie judgment of the court. Such is in substance the
statute of most of the States, diflfering, however, materially
from the statute law of Indiana, which law allows the bastardy
proceeding under the statute to be commenced by a married
female complainant.
Based upon this statute is the opinion in Cuppy v. The
State, etc., 34 Ind. 389, cited by plaintiflF in error.
Our statute has not only failed to give relief to a married
woman who is the mother of a bastard child, but goes further
and excludes her from all relief, by expressly limiting the
action to an unmarried female.
In the action of the Legislature of this State, in expressly
excluding a married woman from any benefit under the statute^
we find a manifestation of that spirit which pervades the com-
mon law, and which spirit became so firmly established as to
give birtbto the principle which has become axiomatic, viz.,
'*a married woman is estopped from bastardizing her own
issue."
It is a conclusive presumption of law, as against husband
and wife, that a child born during marriage is legitimate.
Greenleaf on Evidence, Vol. 1, Para. 28, p. 37.
"For reasons of public decency and morality, a married
woman can not say that she had no intercourse with her hus-
band, and that her offspring is spurious." 1 Greenleaf on Evi-
dence, Para. 344, p. 444; Dennison v. Page, 29 Penn. 420; Par-
kens V. Day, 15 N. H. 45; People v. Ontario, 15 Barb. 286.
And this refusal to allow a married woman to testify as to the
spuriousness of her own offspring was not the result of the
common law rule of evidence, which prevented a party
interested, or a party to a suit, from testifying, and which dis-
ability is removed by the statute law removing the disability
of parties plaintiff and defendant, as is urged by the plaintiff
in error. But this estoppel arose from sentiments of common
decency, public policy and religion.
In Drennan v. Douglas, 102 111. 341, the court says: "The
violation of the marriage obligations by a married woman,
by committing adultery and becoming pregnant by one not
Fourth District — August Term, 1890. 395
■^"^^^^~~^— ~^^^"'~'^~— ^"™^'^— ^-^-^— ^■^■^— ^— ^— ^— — ».^— ^^^^^ — ^^^-j— — II
Vetten v. Wallace.
her husband, under an alleged promise of marriage, can nc»t
be made the foundation for a consideration to support a
promise by the seducer to make a will giving her and the child
all his property."
The court further says that the complainant " violated
the laws of the State and was guilty of adultery, and then in
turn undertakes to make these violations of duty and law the
foundation for a consideration to support a promise, which
she calls upon a court of equity to enforce. A court would
stultify itself should it grant relief under such circumstances."
It is a fundamental principle of the law of contracts, that
the doing of, or the consequences arising from an unlawful act,
can never be the consideration for a contract.
The matter arising from the declaration and the first spe-
cial plea in this case clearly show a case within the meaning
of the aforesaid law.
A married woman is unfaithful to her marriage vows, she
commits adultery, is therefore guilty of a crime, and then
comes into court and seeks to make the consequences of that
crime the foundation for an action at law.
The point is made by plaintiff in error that the plea should
have charged a lawful marriage, and that the plaintiiflf might
have been married and yet not lawfully married. We hardly
suppose that the point is made seriously, and rather hesitate
to enter into an argument upon it before this court.
We would answer that the word man*iage is a word of law ;
there can be no marriage unless lawful. An unlawful mar-
riage is an impossibility. If any of the legal requisites are
wanting in an executed contract of marriage, at law it is no
marriage.
It is very true that the father is bound by an express prom-
ise, and sometimes by an implied promise, to support a bastard
child. The authorities are quite clear, if the father recog-
nizes the child as his own, assumes the custody of the child,
and exercises control over its person, that he is liable upon
an implied promise for necessaries furnished to the child.
He is likewise liable to the mother, or to a third person^ U(>on
an express promise.
396 Appellate Courts of Illinois.
Vol. 39.] Vetten v. Wallace.
But we are nnable to find any authority overruling the
common Jaw principle requiring the plaintiff, in a proceeding
of this nature, to be an unmarried woman.
In Gliddeu v. Nelson, 15 III. App. 297, the plaintiff was
an unmarried woman. It sometimes happens in collateral
proceedings, the question of legitimacy is inquired into to
settle disputes as to the rights of heirs even when the mother
is married at the time.
In cases of this character it is allowed to prove the absence
or non-access of the husband, or even the husband's impotency
can be proved. But the rules governing these cases are very
different from those governing the one at bar.
Keeves, J. By the demurrer it was admitted that the
plaintiff in error was the mother of the alleged bastard child,
and that she was at the time of the birth of the child the
wife of Henry Koch, to whom she was married March 11,
1873. The child was born, according to the averments of the
plea, in wedlock, between plaintiff in error and Henry Koch.
If defendant in error was the father of the child, plaintiff in
error must have been guilty of adultery. Taking the decla-
ration and plea together, it is manifest that the consideration
for the promise alleged in the declaration was the fact that the
plaintiff in error was the mother, and defendant in error was
the father of the child.
The father of a bastard at common law was not under any
legal obligation to support his illegitimate child. He is only
made liable under our statute where the mother is an un-
married woman. The alleged bastard child, the support of
which was the basis of the alleged promise by defendant in
error to pay, was the result of the criminal intimacy of
plaintiff in error, a married woman, with defendant in error,
so that the consideration of the promise alleged is shown by
the plea to involve a criminal offense on the part of the per-
son to whom the promise was made. The doing of an unlaw-
ful act, or the consequence of an unlawful act, can not be made
the consideration of a contract. As was said in Drennau v.
Douglas, 102 111. 341, a married womau cannot make her own
Fourth District — August Term, 1S90, 397
Vetten v. Wallace.
violation of duty and law the foundation for a consideration
to support a promise. Again, a married woman will not be per-
mitted to bastardize her own offspring, born in wedlock.
*' For reasons of public decency and morality, a married
woman can not say she had no intercourse with her husband,
and that her offspring is spurious." 1 Greenleaf on Ev., Sec.
344. Tliis prohibition does not apply to her competency as a
witness, but is a rule of law governing any right of action
which she may set up, involving such bastardism of her own
offspring, born in wedlock. The presumption is that a child
born in wedlock is legitimate, and this presumption the mother
will not be heard to deny. 1 Greenleaf on Ev., Sec. 283.
It is urged that the plea should have alleged that the plaint-
iff in error was lawfully married to Henry Koch. There can
be no marriage unless it be a lawful one, hence the allegation
that plaintiff in error was married to Elenry Koch was equiva-
lent to saying she was lawfully so married. A traverse of the
plea would have enabled plaintiff in error to show that at the
time of the birth of the child she was not the wife of Henry
Koch. This suit was brought to recover for necessaries fur-
nished by plaintiff in error to the child. These necessaries it
was the duty of her and her husband under the law to furnish.
This case differs from Todd v. Weber, 95 N. Y. 181, in this,
that the mother of the child was an unmarried woman, and the
recovery was had by persons who were under no legal obliga-
tions to support the child, and was based upon the fact that
the putative father recognized the child as his, and promised
these people if they would care for and support the child, he
would pay them for such care and support
It is urged that by the plea, defendant in error admitted he
was the father of the child, as averred in the declaration. If
the plea was true, then this allegation in the declaration was
not true; at least the plaintiff would not be heard to make
such an allegation. When the defendant by his plea showed
that plaintiff was the mother of the child, and was at the time
it was born the wife of Henry Koch, this effectually, under
the law, met the allegation of the declaration that defendant
was the father of the child. The judgment of tlie Circuit
Court is affirmed. Judgment affirmed.
398 Appellate Courts of Illinois.
— --
Vol. 89.] E. St. L. Union Ry. Co. v. City of Eiist St. Louin.
39 398
4S 380
East St. Louis Union Railway Company
V.
City of East St. Louis.
Mumeipal Corporations — Streets — Use of 6jf Eallmad Company —
Instructions — Ordinance — Jurisdiction — Practice.
1. Failure to advise this court by assigrnment of error upon the record
of the errors relied upon to reverse in a given case, will excuse it from a
further consideration thereof.
2. A municipality may revoke an ordinance pranting a right of way
though its streets, before the same has been accepted.
3. Where the evidence in a given case is not preserved in the record,
this court will assume that it authorized <tho findings.
4. The si>ecific finding of the truth of an allegation in a bill, not denied,
but inferentially admitted, is not necessary to support a decree for complain-
ant in a given case.
5. This court declines, in view of the evidence, to interfere with a decree
perpetually enjoining a railway company from building a railroad in or upon
a certain street in a municipality named.
[Opinion filed February 2, 1891.]
Ik error to the Circuit Court of St. Clair County; the
Hon. William H. Snyder, Judge, presiding.
Messrs. Koerner & Horner, for plaintiff in error.
Mr. Cbarlbs W. Thomas, for defendant in error.
Green, J. On December 14, 1883, defendant in error filed
its bill for injunction in the City Court of East St. Louis,
against plaintiff in error, and on December 19, 1883, a change
of venue to the Circuit Court was ordered upon the applitm-
tion of the defendant, and on December 20, 1883, its answer
was filed. On the second Monday of the February term, 1884,
the temporary injunction was dissolved on defendant's mo-
tion, and the cause was continned from term to term until the
September term, 1884, when the cause was heard upon the
Fourth District — August Term, 1890. 399
' — • — — — — — ' >
E. St. L. Union Ry. Go. v. City of East St. Lonis.
bill, answer, exhibits and testimony, and a decree was entered
perpetually enjoining defendant, its servants, agents and suc-
cessors, from building any railroad in or upon Front street, in
the city of East St. Louis, or any part thereof, and from
operating or maintaining any railroad therein. To reverse
the decree this writ of «rror was sued out.
We are not advised by any assignment of error upon the
record, of the errors relied upon to reverse and this omission
would relieve us of the labor of examining the record further;
but we would not be inclined to reverse for any of the rea-
sons suggested in the printed argument of plaintiff in en'or
had this omission been supplied.
The right to the relief prayed for and decreed, is based
upon the allegations that the only grant of right of way to
plaintiflE in error, over, upon and along Front street, was the
city ordinance, passed November 28, 1882, and that ordinance
was the only one whereby any right of way was given to
plaintiff in error upon any street of said city; and before said
plaintiff in error had built or constructed any railroad or part
of any railroad in said street, or had expended any money or
other valuable thing upon the faith of and because of the
])aseage of said ordinance, or acquired any vested right there-
under, the said ordinance was, on June 11, 1883, repealed;
that said Front street was dedicated to said city prior to 1870
and was by it accepted, upon the condition that it should be
forever kept open as a public highway for ordinary travel,
and the building and operating of a railroad on said street by
plaintiff in error would close said street as a public highway,
within the meaning of the dedication, and render it entirely
incapable of accommodating the great travel daily passing over
it; that plaintiff in error, unless restrained and enjoined,
would begin the construction of tlie railroad in said street, or
do some act which would give it some vested rights under the
repealed ordinance, and complete and operate its railroad as
it threatens to do. The findings in the decree are, first, the
general finding that the material allegations in the bill are
true; and then specific findings unon each allegation thereof
are set out in detail, whereby it is shown thecoui*t found each
400 Appellate Courts of Illinois.
Vol. 89.] E. St. L. Union Ry. Co. v. City of East St. Louis,
of said allegations to be true, except tliat alleging the threat-
ened completion and operating of the railroad by defendant,
which is not denied by the answer.
It is contended on behalf of plaintifiF in- error that its right
to construct and operate its railroad is fully recognized in the
cases of Wiggins Ferry Co. v. E. St. Louis Union Ry. Co., 107
111. 450, and E. St. Louis Connecting Ry. Co. v. U. Ry. Co., 108
111. 271, and such right can not now be questioned by defendant
in error. An examination of these cases satisfies us they do not
support the contention. It is also contended that the city, by
its ordinance, granted a right of way and was powerless to
revoke it by the subsequent repealing ordinance, and among
other authorities cited in support of this point is City of
Quincy v. Bull, 106 111. 352. In this case the grant was
accepted and money was expended, work was done and several
miles of water-mains were laid down, all upon the faith of the
accepted grant, before the city attempted to avoid its con-
tract. In the case at bar, the bill alleges, and the court by its
decree specifically finds, that before plaintiff in error had made
any expenditure upon the faith of and because of the passage
of the ordinance of November 28, 1882, and before it had
acquired any vested rights thereunder, the same was repealed.
The grant was not accepted by the corporation, hence the city
had the right to revoke it. It is also urged as a ground for
reversal, that the evidence is not preserved; that the decree
has nothing to support it, except the recitals of findings and
these are all on immaterial facts. The evidence introduced
on the hearing is not before us and we must presume it was
sufficient to authorize the findings. It appears by the recital
in the decree that the cause was heard upon the bill, answer,
exhibits and testimony, and being so heard and the court being
thus fully advised, it finds generally, and also specifically as
before stated. Its findings were responsive to the issues and
found all the material facts necessary to maintain the bill in
favor of the complainant, and we can not, in this state of the
record, assume that anything appeared to the court to be
a fact except that which so appeared from the evidence.
Wheeler v. Wheeler, 18 ill. 39; Moore et al. v. School
Fourth District — August Term, 1890. 401
City of Olney v. Riley.
Trustees, 19 III. 82; Jones v. Neely, 72 111. 449; Durham v.
Mnlkey, 59 111. 91.
It is fui-ther iosisted there is no evidence to support the
material allegation that defendant " threatened to build its
tracks and unless restrained would do so." This allegation
was not denied by the answer, which sets up a right in defend-
ant to build and operate its road on said street; hence the
specific finding of the truth of an allegation, not denied but
inferen'tiallj admitted, was not necessary to support the
decree. That a court of equity has jurisdiction in this class
of eases is settled, as we think, in Jacksonville v. Jacksonville
R. R. Co., 67 III. 540, where a like injunction was decreed and
was sustained by the Supreme Court. NosuflScient reason to
us appearing why the decree should be reversed, it is afiu-med.
Decree affirined.
The City of Olney
V.
Thomas B. Riley,
Miittlcipal Corporations — Negligence (if— Street Crossing — Personal
Injuries — Evidence — Instructions.
1. Want of reasonable care on the part bf the officers of a city as regrards
the keeping in repair of Htreets. crossings, and the like, will warrant a
recovery for personal injuries suffered by reason thereof. Gross negligence
is not necessary to entitle a plaintiff to recover in such action.
2. In the case presented this court holds that an instruction asked in
lielialf of the defendant, was properly modified by the trial judge, and decline?,
iu view of the evidence, to interfere with the verdict for the plaintiff.
I
[Opinion filed February 2, 1891.]
Appeal from the Circuit Court of Richland County; the
Hon. C. C. BoGGB, Judge, presiding.
Mr. John Lynch, Jr., for appellant
402 Appellate Courts of Illinois.
--_- -■ - ■- ■ ^ ij-n- - M
Vol. 39.1 City of Oiney v. Riley.
Messrs. E. B. Witcher and Allen & Feitchby, for appel-
lee.
Geeen, J, This suit in case was bronglit by appellee to
recover for personal injuries alleged to have been occasioned
by the failure of appellant to keep a certain street crossing in
reasonably safe condition. The jury found for plaintiflp and
assessed his damages at $225, and judgment was entered on
the verdict. To reverse this judgment, defendant appealed.
No witnesses were introduced on behalf of defendant below>
and the evidence on behalf of plaintiff fully sustains tlie ver-
dict. The damages were not excessive. Plaintiff's leg was
broken and his ankle injured when he fe!J at the crossing. He
was confined to his room by reason of his injuries, five or six
weeks, and was unable to work for a period of more than
three months. He suffered great pain during the time he was
confined to the house, and his physician's bill was $34.50. lie
was a miller by trade, earning $2.50 per day at the time of
his injury. These facts would have justified the jury in
allowing a much larger sum than the amount recovered
if they found defendant guilty. The instructions given
for plaintiff stated the law correctly and were applicable to
the facts proven. Complaint is made of the modification
of several instructions asked on behalf of defendant, but
an inspection of the record discloses the modification of but
one. The first instruction for defendant, which appellant
claims was modified by the court, is preceded by these words:
" And, thereupon, the defendant asked the court to give the
jury the following instructions:" then follows the instruction
(including the language claimed to have been added by the
court), which is marked, '• Given," and nothing in the record
indicates that the instruction as given is not the instruction as
requested by defendant, unless two bracket marks, in pencil^
inclosing the words said to have been added, should be held
to furnish such indication. How or when these marks were
so placed is not explained. The instruction which the record
does show was modified, was as follows:
" You are instructed that a city is not liable for every acci-
FouPvTH District— rAuGUST Term, 1890. 403
City of OIney v. Riley.
dent that may occur upon its sidewalks, but to establish a lia-
bility to the plaintiflf, it must be shown by a preponderance of
the evidence that tlie officers of the city are guilty of gross
negligence, or Mraut of ordinary care; not only that an injury
was received by the plaintiff, but must also show tliat the
injury was occasioned by a failure of tlie city to keep in a
reasonably safe condition the sidewalk or crossing at the time
and place in question; further, that the plaintiff was, at the
time of the injury, using ordinary and reasonable care for hie
own safety." The court changed the language and then gave
the instruction as follows: '* You a're instructed that a city is
not liable for every accident that may occur upon its side-
walks, but to establish a liability it must be shown by a pre-
ponderance of the evidence, not only that an injury was
received by the plaintiff, but must also show that the injnr}^
was occasioned by a failure of the city to keep in a reasonably
safe condition the sidewalk or crossing at the time and place
in question; further, that the plaintiff was, at the time of the
injury, using ordiuary and reasonable care and prudence for
his own satety." It is quite apparent the instruction as asked
for ought to have been modified or refused. It was not
required that the evidence should show the officers of the city
guilty of gross negligence to entitle the plaintiff to recover,
but a want of reasonable care on their part would be negli-
gence creating liability. Perhaps tn.e modified instruction
might have been framed with more accuracy, but as given it
was quite as favorable for defendant as it could demand. We
discover no error requiring the reversal of the judgment,
and it is affirmed.
Judgment affirmed.
404 Appellate Counts of Illinois.
Vol. 89.] . Nuernberger v. Von Der Heidt.
Louis Nuernbeeger
V.
Edward Von Der Heidt.
Landloi'd and Tenant — Farm Hands — Crop Eettt—Disfresfifor — Sale
of Growing Crops — Notice.
In distress proceedinprs instituted to recover certiin rent claimed under
a lease providing fbr a crop rent in part, for certain lands, thedbntention on
the part of the lessee being thai he had purchased such rental before the
Bale of the property in question to the plaintiff, this court holds that as
between- the grantor and the lessee, growing croi^ might be sold by parol
contract, and declines to interfere with the judgment for the defendant, it
appearing that the plaintiff had notice of the sale before the completion of
the contract of purchase of said lands.
[Opinion filed February 26, 189L]
Appeal from the Circuit Court of St. Clair County; the
Hon. Geobob W. Wall, Judge, presiding^
On the first day of August, 1888, one Elizabeth Ballheimer
leased to her uncle, the appellee, a tract of land in St. Clair
county, Illinois, for a term of three years. The stipulated
rental was $75 in cash, and one-third of the wheat raised on
the premises, all payable on August 1st of each year. Tlie
lease was in writing and filed for record February 9, 1889.
Subsequently, on the 4th day of April, 1889, the above lessor,
for a consideration of $6,600, conveyed the same tract of land
to appellant by warranty deed. The deed was filed for record
on the 5th day of April, 1889. All of fhe rent fell due long
after appellant acquired the fee simple title, and at the time
it was due, the $75 cash rent stipulated in the lease, was paid
to the appellant, but on a demand made at the proper time,
when the wheat was being threshed, the appellee refused to
deliver to appellant the one- third of the wheat, and thereupon
he began proceedings for distress. On the frial the appellee
interposed the sole defense that he had purchased the <»ne-
third wheat rental from the appellant's grantor before tlie
Fourth District — August Term, 1890. 405
Nuernl>erger v. Von Der Heidt.
execution of the deed to appellant. The trial was before the
court without a jury., wlio found the issues against appellant
and awarded a return of the property.
Mr. Ekanzlin A. McConaught, for appellant.
Messrs. Hay & Barthel, for ap])ellee.
Phillips, P. J. It is urged as grounds for reversal of this
judgment, that the evidence does not show a sale of the inter-
est in the crops by appellant's grantor. Aud secondly, that
the grantor of appellant while the landlord of appellee, had
no property in the wheat which could be the subject-matter
of sale by fraud.
As between landlord and tenant, between debtor and
creditor, and under our statute between executor and heir,
growing crops ai^ personal property. But between a tres-
passer and the. owner of the soil, and a vendor and a vendee,
they are real estate. Powell v. Rich, 41 111. 466. As
between the grantor of appellant as the landlord of appellee,
and appellee as her tenant, growing crops, being personal
property, may be sold by parol contract. The evidence in
this case shows the gi*antor of appellant sold her interest in
the growing wheat to appellee, while she was still the land-
lord of appellee; and the weight of proof shows that appel-
lant had notice of that sale before the completion of the
contract of purchase. Appellee was in possession of the
premises, and the appellant having notice of the sale, the
judgment must be affirmed.
Judgment affirmed.
40G Appellate Courts of Illinois.
V^OL. 39.] St. L., A. & T. H. R. R. Co. v. Huurkinp.
St. Louis, Alton & Terre Haute Eailroad Com-
pany
V.
Dell A Hawkins.
Hailronds—Liahility for Injury to Contents of Trunk— Evidence —
Instruclhns — Practice,
1. While it is the duty of a court, tinder the statute, to mark all instruc-
tions read to the jury, ** Given," failure to do bo in case of instructions
t^hown to have been given, the omission working no harm, can not be 'com>
plained of.
V2. In the absence of proof to the contrary, the presumption is that the
trunk of a passenger will arrive at his destination the 8«me time he does,
both starting upon a given trip at the same time.
3. The delivery of a check' by a railroad company in exchange for one
given thereto, is prima facie evidence of the receipt by it of certain bag-
gage, and (hat the same was in good order. This presumption may be
overcome as to its condition by evidence to the contrary. *
4. To releai>e such company from liability for damage to such baggage,
it must show that it was in substantially the same condition when deliv-
ered to its owner, us when received by it.
[Opmion 'filed February 2, 1S91.]
Appeal from the Circuit Court of Perry County; tlienon.
W. H. Sji^yder, Jud^e, presiding.
Appellee, September 26, 1888, bought a ticket at Santa
Anna, California, for St. Louis, and received a througli check
to St. Louis for her trunk. She arrived in St. Louis Thurs-
day afternoon, October 4, 1888, and went at once to the office
of appellant and bought a ticket to Tamaroa and exchanged
the check she held for her trunk for the check of appellant.
She left St. Louis Thursday evening on a train on api)ellant'8
load and reached Tamaroa Friday morning. Her trunk
reached Tamaroa Saturday evening, October 6th. There was
dry mud on the outside of the trunk, covering the front of
the trunk and part of the ends and top, and when opened it
was found full of muddy water and the contents damaged to
Fourth District — August Term, 1890. 407
St. L.. A. & T. H. R. R. Co. v. Hawkine.
the amonnt of $100. It is not shown when the trunk reached
St. Louis. The baggage-man on the train that carried the
trank on appellant's road, says he received it on his car in
St. Louis a few minutes before 3:45 p. m., October 5th. It is
shown that there was mud on the outside of the trunk; noth-
ing else, apparently, was wrong about it. It was not marked
as in bad order until it came into the possession of the bag*
gage-man of the Wabash, Chester & Western Railroad, at
Pinckney ville. It is shown that the trunk was not damaged
after it left St. Louis. Plaintiff below recovered a judgment
for $100, and the railroad company prosecutes this appeal.
Mr. R. W. S. Whkatley, for appellant
Mr. S. Y. Hawkins, for appellee.
Rkeves, J. Tlie delivery of the check to appellee by
appellant was prima facie evidence, not only of the delivery
of the trunk to appellant, but also that it was in good order
when roceived. This prvtaa facie case could be overcome, as
to the condition of the trunk, by proof showing that it was
not in good order when received by appellant; by showing
that it was in the same condition when received by appellant
as when delivered to appellee at Tamaroa. There is no proof
as to the time the trunk arrived in St. Louis, or when it came
into the possession of appellant. It is shown that appellee
arrived in St. Louis on Tliursday afternoon, October 4th; the
presumption would be in the absence of proof, that her trunk
reached St. Louis at the same time she did. The first lime
that the evidence touches the trunk after its aiTival in St.
Louis is when it was received by the baggage-man on the train
of api^ellant, a few minutes before 3:45 p. m., Friday, October
5th. How long before that it came into the possession of
appellant is not shown. What happened to the trunk during
that time is not shown. To relieve appellant from liability
for the damage to the contents of the trunk, it should appear
that it was in the same condition when it first received the
trunk, as when delivered to appellee at Tamaroa; this the
evidence does not show.
It is further urged that the evidence docs not disclose that
408 Appellate Courts of Illinois.
Vol. 39.] St. L., A. & T. H. R. R. Co. v. Hiiwkins.
the contents of the trunk were proper articles of baggage.
The contents are spoken of bj appellee as her clothing, and
mentions particularly a cloak. Another witness speaks of the
contents as garments. No objection was urged below upon
this point, and we think tiie evidence tends clearly to show that
the trunk contained appellee's wearing apparel. •
It is said that certain instructions for the plaintiff below,
copied into the bill of exceptions, are not marked "given."
The record recites, "and thereupon the court gave to the
jury, on behalf of plaintiff, the following instructions, " and
then copies plaintiff's instructions, including those not marked
" given." It is clear from the record that these instructions
were given by the court to the jury, and while it is the duty
o-f the court under the statute to mark all instructions read
to tlie jury "given," an omission, such as occurred in this case,
could work no injury to any one. The fourth instruction is
awkwardly drawn and not clearly intelligible; still we can
see that appellant was not injuriously affected by it. The
evidence does show that appellee bought her ticket over
appellant's railroad, and Wabash, Chester & Western Rail-
road, to Tamaroa, and received a check for her baggage
through, and that it was a joint check for i)oth roads.
The sixth instruction tells the jury, in effect, that it was
incumbent on appellant to relieve itself from the liability
arising upon the p?^.ma facie case made by plaintiff, to show
that the trunk was in a damaged condition when it received
it, and was not damaged while in its possession, and further
that if appellant received the trunk from the road to whom
the check received from plaintiff was surrendered as irt good
condition, when it was in bad condition, this was negligence
on the part of the appellant. The latter clause of this instruc-
tion should not have been given, but quite a number of
defendant's instructions clearly and pointedly counteract any
injurious effect that could have been done by this latter clause
of plaintiff's sixth instruction.
While the record in this case is not free from error, we do
not find upon the whole record sucli error as should reverse
tlie case. The judgment of the Circuit Conrt is affirmed.
Judgment afilrmed.
Fourth District — August Term, 1890. 409
0. & M. Ry. Co. V. Raraey.
Ohio & Mississippi Railway Company
V.
Thomas D. Ramey.
Hailroads — Negligence — Flowage — Extraordinary Flood — Etnhanl"
ment — Maintenance of— Proximate Cause of Injury — Special Interrog-
atories— Practice.
•
1. It is proper to enter the general verdict in a given case without
requiring the jury to return a special finding upon an interrogatory which
did not submit a question that was controlling.
2. In an action to recover from a railroad company for injury to grow-
ing crops, alleged to have occurred through its negligence, this court holds:
That the jury were justified in finding that its embankment and not an
extraordinary flood caused the damage in question, and declines to interfere
with the verdict for the plaintiff.
[Opinion filed February 2, 1891.]
Appeal from the CircTiit Conrt of St. Clair County; the
Hon. W. H. Snyder, Judge, presiding.
Messrs. Pollard & Werner, for appellant.
The statute which provides for special verdicts (3 Starr &
C. III. Stats., p; 435) contains the following section, viz.:
Section 2. " Submitting or refusing to submit a question
of fact to the jury, when requested by a party, as provided by
the first section hereof, may be excepted to and be reviewed
on appeal or writ of error, as a ruling on a question of law."
Now, the failure of the court to require an answer to an
interrogatory submitted, is tantamount to a refusal to submit
the interrogatory. City of Wyandotte v. Gibson, 25 Kas. 236.
The failure of the jury to answer the interrogatory is equiva-
lent to an answer that they were ** unable to agree," which
leaves the verdict so incomplete as to require the jury to be
discharged. Kas. Pac. R. Co. v. Eeynolds, 8 Kas. 623.
Even where answers are made, but are not full, or respon-
sive or clear, upon proper objection the court is bound to
require the jury to properly answer the same. Noble v. Enos,
19 lud, 72; Nockes v. Morey, 80 Ind. 103; McEIfresh v.
S9
409
43
79
43
110
139s
9
410 Appellate Courts of Illinois.
Vol, 39.] 0. & M. Ry. Co. v. Ramey.
Guard, 32 Ind. 408; Sage v. Brown, 34 Ind, 464; Keeves v.
Plough, 41 Ind. 204.
If the question be a proper one and has been submitted, and
the statute render it obligatory upon the court to submit the
question to the jury when requested, the court can not with-
draw it for any reason. Otter Creek Block Coal Co. v. Kanej',
34 Ind. 329; Summers v. Greathouse, 87 Ind. 205; Duester-
berg V. State ex rel. City of Vincennes, 116 Ind. 144.
. Mr. James M. Hay, for appellee.
Sees. 2, 3, Starr & C. 111. Stats., p. 435, are not infringed, be-
cause the court submitted the question of fact requested by ap-
pellant ; and the court's refusal to require the jury to answer the
question, or to grant a new trial, was, in the judgment of the
court, unnecessary Bnd improper, as the verdict was just and
abundantly supported by the evidence and the law.
" The i)rovision of the statute * * * necessarily implies
that the fact to be submitted shall be one which, if found,
will in its nature be controlHng." "A fact which merely
tends to prove a fact in issue, without actually proving it, can
not be said to be, in any legal sense, inconsistent with the
general verdict, whatever that may be." The Chicago &
North- Western R R. Co. v. Dunleavy, Adm'x, 129 111. 132.
Now, because this was an extraordinary rain-fall, although
not heavier than had visited the region in which this occurred
many times before, it does not disprove the fact that the fill-
ing up of the trestle, the outlet south, for the surplus water,
was the cause of the damage to the crops of aprellee.
In building bridges and culverts, railway companies bvo
bound to anticipate and provide against "not only the natural
rise and fall of tlie waters during the year, but also the floods
and freshets which occur at longer periods or intervals,
and which, from having been known to occur, might reason-
ably be expected to occur again." Bochhardt v. Boom Co.,
54 Wis. 107 ; Gray v. Harris, 107 Mass. 492 ; Railroad Co. v.
Carr, 38 Ohio St. 448.
The identical question has been before this court, at the
August term, 1889, in the cases of Charles A. Singletary and
Elliot against the Ohio & Mississippi Railroad Company,
Fourth DrsTkiCT — August Teem, 1890. 411
0. & M. Ry. Co. V. lamey.
appellant, and also the same witnesses in all the cases. See 34
III. App. 425. In the case of Elliot, the precise question as to
t)ie extraordinary character of the rain-fall in June, 1888, was
passed upon by this court. Miller, Kaniey, Hoeltnian and others
speakof other rain-falls previous to this, in their opinion, as
heavy as the one of June 16, 18S8. They also testify that, for
years before, the farmers and owners of land lying north, in-
formed the appellant that they were being injured by the appel-
lant having filled up the trestle, thereby causing and forcing
the surplus water to overflow their lands, and that it must be
remedied. They perceived thjit year by year their farms were
becoming more and more liable to be damaged by reason of
the increasing obstructions placed by appellant across the
natural outlet of the floods. The appellant took its choice,
and maintained and increased its obstructions year after year,
thereby saying to the proprietors of lands north, it Avould
assume all damages caused by its damming up .the channel.
The floods descended, and with them the damages to the
property of appellee. Is the appellant surprised, or has it
reason to be surprised, at the result pf its acts?
Green, J. This suit was brought to recover damages
resulting from the maintaining of an embankment obstructing
the natural flow of water and forcing it back and over the l^nd
of appellee, destroying his crops growing thereon. The jury
found appellant guilty of the negligence charged, and assessed
the damages at $700, for which amount judgment was entered.
Two grounds for reversal are suggested. First, it is insisted
the solid embankment maintained by appellant was not the
proximate cause of the ov-erflow complained of, but that it
was caused by an extraordinary flood; second, tliat it was error
in the court below to receive and enter the general verdict
without requiring the jury to return a finding upon the fol-
lowing interrogatory submitted to them by the court at the
request of appellant: "Was the plaintiff's damage which is
complained of, the direct result of an extraordinary rain-
fall of June 16, 1888?" The evidence upon the question
of the character of the rain-fall at that date was conflict-
ing, several witnesses testifying there had been as heavy
412 Appellate Courts of Illinois.
Vol. 39.1 0- & *^^- Ry* ^o, v. Rarney.
rains in that locality in prior years. The jury had sufficient
evidence to justify the finding that the embankment, and not
an extraordinary flood, caused the water to back up and over-
flow the crops of plaintifif; hence, the first point suggested is
not sustained by the record. The interrogatory presented
for a findinsr an evidentiary and not an ultimate fact The
jur}' by answering this interrogatory in the affirmative, would
not necessarily thereby have returned a special finding in con-
flict with their general verdict, nor a finding concluding the
plaintifif and defeating his right to recover. It might be
conceded an extraordinary rain/all of June 16, 1888, directly
damaged plaintiff by overflowing and destroying his crops,
and yet but for the negligence of appellant in maintaining a
solid embankment unprovided with suitable and proper out-
lets or culverts, for the passage of the water in its natural
course when heavy rains occurred, the water on June 16th
might have flowed oflE and not have backed up and overflowed
plaifitifif's crops. The evidence established the fact that the
embankment was a solid structure, without an opening, and
absolutely dammed the water and prevented it from flowing
off in its natural course, as it did before the obstniction was
erected. The interrogatory did not submit a question to the
jury that was controlling and it was not error to enter the
general verdict without requiring the jury to return a special
finding. C. & N. W. Ky. Co. v. Dunleavy,' 129 111. 132.
The evidence justified the verdict. The jury were fully and
very favorably instructed for appellant and no reason appears
why the judgment should be reversed. It is therefore
affirmed.
Judgment affirmecL
Fourth District — August Term, 1890. 413
New Home Life Ass'n of Illinois v. Owen.
The New Home Life Association of Illinois
V.
Letha Owen and Rufus D. Owen, for use, etc.
lAfe Insurance — Mutual Benefit Associalionn — Application — Truth as
to Statements in — Verdict — Form of— Evidence — Instructions,
•
While an affidavit as to the state of bis health, filed by an ex-soldier upon
application for a pension, is admipsible in an action upon a life insurance
policy issued to him, as tending to show that at about the time be took out the
same he was suffering from a disease which be fraudulently failed to dis-
close to the company, and which, if be bad, would have prevented bis being
accepted as a risk, it is not conclusive, and the jury must determine from all
the evidence, whether the facts set forth in such affidavit were true or that
the application for insurance correctly sttited bis condition.
[Opinion filed February 2, 1891.]
In ebror to the Circuit Court of Jackson County; tlie
Hon. O. A. Harkeb, Judge, presiding.
Appellant issued a certificate of membership, in the nature
of a policy of insurance, to Allen J. Hagler, May 10, 1884,
Letha Owen and Rufus D. Owen being named as beneficia-
ries in such certificate. Hagler died August 10, 1888, and the
association refusing to pay, suit was brought by the beneficia-
ries to recover upon the certificate. After suit was brought
the association settled with Le^ha Owen and she was dismissed
as a party plaintiff and the suit progressed to a judgment in
favor of Kuf us D. Owen for $900. The defense to the action
was set up in a special plea to the effect that Hagler, in his
application for membership, made untrue and fraudulent
statements and did conceal material facts, and particularly that
he declared that he did not have any disease of the lungs and
did not have disease of the heart, when in fact he did have
both of these diseases.
Messrs. W. C. Calkins and W. S. Fokman for plaintiff in
error.
!
I f
414 Appellate Courts of Illtnoip,
Voii. 89.] New Home Life Asn'n of Illinois v. Owen.
Mr. W. A. ScKWAKTZ, for defendant in error.
Keevbs, J. The material qneetion submitted to the jury
upon the trial was whether Hauler had, in his application for
membership, made untrue statements as to his condition of
health. The testimony on this point was conflicting. The
testimony offered by the plaintiff established the conten-
tion that the statements made by.Hagler in his application,
as to the condition of his health, were true. On the othei:
hand, the testimony offered by the defendant tended strongly
to show that, prior to May, 1884, when the certificate was
issued to llagler, he was afflicted with flux occasionally
and suffered from some form of lung disease. The state-
ments made by Hagler in his application for a pension in
1882 and 1883, were particularly relied on by the defendant
to show that prior to 1884 he was claiming that he was suffer-
ing from lung disease and flux, contracted while he was in
the military service, and that a pension certificate was granted
liim for disease of tlie lungs. The jury found, in answer to
special interrogatories submitted to them, that at the time he
made liis application for membership in the appellant associa-
tion he was not suffering from lung trouble or flux t^nd that
his death was caused by 6y])hilis. It may fairly be said from
all this evidence, that Hagler was not entitled to a pension.
We think that the clear weight of the testimony is that Hag-
ler was not suffering from lung disease in May, 18.84. We
incline to give more force to the uncontradicted testimony as
to the work Hagler did from 1870 to 1886, than to the opin-
ion of the physicians as to his physical condition. It is shown
that for several years prior to 1881, Hagler was engaged for
Roseboro in the woods, receiving and loading ties; was out
every day, wet and dry, and was always ready for duty. From
1884 to 1886, he was a helper in a blacksmith shop, using a
sledge weighing fourteen pounds, and put in good time. It
would hardly have been possible for a man with diseased lunga
to have performed this labor. This is not the only evidence
on the part of the plaintiff as to Hagler's condition of health.
Besides the general testimony of his neighbors, who knew
FouKfH District — August Term, 1890. 415
New Home Life Ass'n oF lilrnois v. Owen.
lijm at this time and testify to his general appearance of ^ood
liealth, there is tlie testimony of Dr. Edwards, who made the
examination of Hagler when he applied for membership in
1884, to the eflfect that he examined his Inngsand did not find
them diseased; found his respiration full, clear and distinct;
examined his throat carefully and found no evidence of bron-
chitis, and, so far as he could tell from his examination, he
was sound in health. Dr. McNally, who examined Hagler
for another policy of life insurance in June, 1884, testified
that after a careful examination he found his lungs healthy;
no indication of bronchitis or other disease.
This much of the testimony is referred to simply to show
that there was sufficient evidence to support the verdict of
the jury; and because the testimony seems to us to establish
the fact that Hagler was not suffering with lung trouble in
1884, we reach the conclusion that his condition could not, in
reason, have been such a year before as to entitle him to a
pension on account of lung trouble. If a fraud was com-
mitted in the procuring of the pension and there was no
fraud on appellant wlien Hagler was admitted to mem-
bership in appellant association, we fail to see any log^l
grounds upon which appellant can escape liability on ac-
count of the pension fraud. The only material inquiry is,
was Hagler in the physical condition he represented him-
self to be when he made application for membership in
appellant association. Of course, the affidavit made by Hagler
for a pension was proper evidence in this case, but not con-
clusive. His application for a pension and his application for
membership in the life association were in conflict, and it
became necessary for the jury to determine from all the evi-
dence which was true. Thev found that the statements made
in the application for membership in the life association were
true, and we are not disposed to disturb their finding.
Objection is taken to the form in w-hich the jury returned
their verdict. They found for the plaintiff, and assessed his
damages at W,000, less ten per cent, and the court properly
directed the clerk to enter the verdict for $900. The objec-
tions to the plaintiflF's instructions are not well taken. The
416 Appellate Courts of Illinois.
Vol. 39.] Wilderman v. Pitts.
fifth instruction told the jury, that if they found from tho
evidence that Haglar made truthful answers to the questions
propounded to him in the application, to the best of his
knowledge and belief, that was all he was required to do.
We fail to see any error in this. If Haglar was guilty of
some immoral practice which resulted in the disease which
caused his death, the certificate or contract did not provide in
such case the policy should be void. The only provision on
this subject found in the contract is to the effect that if
the member should injure or impair his health by immoral
practices, the association might, by written notice to the mem-
ber, cancel and annul the certificate. This disposes of the
criticism upon the seventh and eighth instructions given for
the plaintiff.
Finding no error in the record that should reverse the
judgment, the same is affirmed.
Judgment affirmed.
James Wilderman et al.
V.
William Pitts.
Contract to Dig Well— Recovery on — Evidence — Instructions — Practice.
1. Wher^, under a contract to do a certain things, the contractor is bound
to make certain tests, and is prevented from doing so by the contractee, he
will be excused from the performance of such requirement.
2. Specific objections to the admission of evidence by the trial court,
general objection only thereto having been made therein, can not be consid-
ered by this court.
3. In an action brouji^ht to recover upon a contract to dig a well, this
court holds that the jury were justified in finding that the well, when fin-
ished, was of the capacity, and would furnish the supply of water required
by the terras of said contract; that the evidence established the fact that
the plaintiff was prevented by the defendants from testing the well after
it was finished, and declines to interfere with the verdict for the plaintiff,
although the same is for less than the contract price.
[Oi^inion filed Febmary 2, 1891.]
Fourth District — August Term, 1890. 417
Wilderman v. Pitta.
AvpEAL from the County Court of St. Clair County; the
Hon. John B. Hay, Judge, presiding.
Messrs. William Winkelman and J. M. Hamill, for appel-
lants.
Messrs. Turner & Holder, for appellee.
Green, J. This cause has been tried twice, and each trial
resulted in a verdict and judgment for plaintiff in the County
Court. After the first trial the record was brought up to
this court for review and we reversed the judgment and
remanded the cause. The declaration in that record con-
sisted of the common counts only, and we said in the former
opinion the ])roof did not show plaintiff had finished a well
of the required capacity, or had finished a well at all; that
the contract between the parties was a 6])ecial contract, by
the terms of which plaintiff was to finish a well of a given
capacity within a reasonable time, and until he complied with
these conditions he could not rightfully demand that defend-
ant should help test the capacity of the well. We also said:
" It is only in a case wliere a special contract has been
fully performed, so that nothing remains 'to be done but to
pay the contract price, that a recovery of such price can be
had under the common counts in assumpsit; '^ but the plead-
ings and proof in the present record differ from those in the
record then before us. When the cause was redoeketed below,
plaintiff amended his declaration by adding to the com.mon
counts a special count averring a special verbal contract was
made between himself and defendants on or about July 10,
1885, to the effect that plaintiff should bore and dig a well for
defendants on their premises, which should be of the capac-
ity, and should furnisli eight barrels of water daily for two
days; that defendants should pay for said well, when so dug
and bored as aforesaid, the sum of $250, and that defendants
were to help test the well. It was further averred that
plaintiff did then and there dig and bore said well, and upon
the completion thereof, did then and there request defend-
Vok XXXIX 17
418 Appellate CouaTs of Illinois.
Vol. 39.] Wilderraan v. Pitts.
ants to help test said well; that they refused and would
not permit plaintiff to test it and refused him permisaiuu
to enter their premises for the purpose ot testinf^ said wellj
by means whereof defendants became liable to the plaintiff to
pay him said sum of $250, and being so liable, in consideration
thereof, promised plaintiff to pay him said sum on request.
The breach is then averred and ad'davinum $500. Defend-
ants interposed a plea which amounted to the general issue,
to which plea a demurrer was sustained, and also a plea of the
general issue, on which issue was joined, and upon tliat issue
the cause was tried. The verdict and judgment was for
plaintiff, for tlie sum of $200 damages and costs. The special
plea amounted to the general issue, and tlie demurrer to it
"was properly sustained. Upon the issue joined, on which
the cause was tried, plaintiff was obliged to prove the special
contract as alleged, and his compliance with its terms, or a
legal excuse for non-compliance with any condition thereof
before he could recover for digging or boring the well, and
defendants had the right and were permitted to introduce all
the evidence in their behalf to prove the well was dug nnder
a special contract, and that plaintiff had failed to perform it.
Under tlie special plea the proof required on plaintiff's
behalf would have been the same, and so would the proof
defendants could have properly introduced in their defense.
We are also of opinion the evidence in this record sustains
the verdict, if the jury gave credit to the testimony of wit-
nesses on behalf of plaintiff, rather than to the testimony of
defendants' witnesses touching material facts, viz., the tinisli-
ingof the well wnthin a reasonable time, the capacity of the well
to furnish the required quantity of water, and the reason why
the capacity of the well was not tested. Plaintiff, in answer
to the question, " When you had finished that well what did
you do?" testified: "After we finished, just as the last was
taken out in the finishing up of the well, I called for a test of
the well." He also testified, on cross-examination, in answer
to the question, "Gould it be used?" " Yes, sir, it could be
used. There was nothing to hinder them. It was clear then
when we left it. 1 finished the well mvself, with the aid of a
FouBTH District — August Term, 1890. 419
Wilderman v, Pitts.
certain man here. We put the gravel around the pipe to
keep the quicksand from coming up;" and to the next ques-
tion, " All was done and in excellent order? " answered, " Yes,
sir." On re-examination, he testified: "When I went to see
them about testing the well, after I had finished it, they said
they had no time to test the well." He further testified on
re-cross: "The well was finished in July; I don't remember
the exact date." The testimony of the witness George
Burger, also tended to corroborate plaintiff in his statement
that the well was finished. The evidence of plaintiff and of
the witnesses Dusenbury, Barger and Eaiser was sufficient to
jiiBtify the jury in finding that the well when finished, was of
the capacity and would furnish the supply of water required
by the terms of the special contract. Furthermore the evi-
dence established the fact that plaintiff was prevented by
defendants from testing the well after it was finished. Hence,
if the testing of the well was required by the contract and
plaintiff was ready and willing and offered to make the test,
but was prevented from making it by the defendants, he was
thereby excused from the performance of that requirement
In Fowler v. Deakman, 84111. 130, cited by counsel for appel-
lants, by the terms of the contract, a certificate of the architect
was required fixing the price of work. The architect was
frequently called upon by plaintiff for such final certificate,
but after striking out some items and delaying about a year,
he declined doing anything further.
The court say in the opinion, the architect unmistakably
refused to proceed further even in an effort to adjust the dis-
pute of the parties; this, then, absolved appellee from any
further efforts to procure the certificate, and entitled him to
sue and recover any amount which might be due and owing
him. In the case at bar, the condition that the well should
be tested was for the benefit of appellants. If they chose to
prevent its performance, they thereby absolved appellee from
the duty to perform it. But counsel for appellants insist that
the verdict being for $200, a sum less than the contract price,
" and as the special count is for the contract price and not for
damages accruing by reason of a breach, the special count
420 Appellate Courts of Illinois.
Vol. 39.] Wilderman v. Pitts.
furnishes no basis for this verdict, and we must find, if we can,
a basis for it in some of the other counts." Counsel then
claims that u\ider the common counts, the evidence does not
justify a verdict for $200, and hence should have been set
aside. We do not concur in this view. If the jury were jus-
tified in finding from the evidence that appellee had fully per-
formed the special contract for digging the well, then nothing
remained to be done under it but for defendants to pay the
money due him for the work, and he could rightfully recover
under the common counts; and it does not follow that^
because the verdict is for a sum less than the price claimed, the
jury did not find the contract was fully performed by appellee.
Plaintiff might justly complain if the verdict is for less than
he was entitled to recover, but if he chose to sustain the loss
rather than to have the verdict set aside, and incur the
expense and delay of another trial, he had the right to do so,
and ought not to be deprived of the benefit of his judgipent
for the amount of the verdict rendered. Defendants could
not be thereby injured. The judgment is a complete bar to
any further recovery for any of the causes of action set up in
the amended declaration.
It is also said the court erred in permitting plaintiff to
introduce the evidence of Frank Kaiser, t^ikcn on the former
trial, contained in the notes made by Krebs, a court reporter.
The death of Kaiser was proved. Krebs then testified he was
a court reporter and reported the evidence at the former trial.
He identified the transcript of the evidence as that taken by
him at former trial, and as the transcript of the evidence of
deceased witness at that trial. Counsel for defendant made a
general objection in the trial court to this evidence, and now
in this court for the first time makes the specific objections
" that the stenographer failed to state that the transcript of
the evidence is correct, and that Kaiser testified on the former
trial as set forth in the transcript." These specific objections
came too late in this court. They should have been made in
the court below and an opportunity there have been given to
make the necessary proof and obviate any objection. Some
other objections are made to the ruling of the court in admit-
Fourth District — August Term, 1890. 421
Wilderman v. Pitls.
tiD^ evidence for plaintiflf, but wo deem it unnecessary to
discuss them. The only other error assigned requiring our
attention, is giving plaintiflPs first instruction, the only one
given on his behalf, except as to tiie form of verdict : " If the
jury believe, from the evidence in this case, that the plaintiff
bored and dug a well for the defendants, which would f ui*nish
eight barrels of water per day for twenty-four hours, for
two days, and that he was to have $250 for such a well from
the defendants, then they will find for the plaintiff, even
though they believe the well has not been tested, if they
believe from the evidence the failure to test the well was not
the fault of the plaintiff." The criticism upon this instruction
is, that it ignores the condition " to dig the well within a rea-
sonalle time,^^ and furthermore, that the last clause announces
a proposition which is not the law, because if the test was not
maJe 6y reason of an accident^ not attributable to the fault of
plaintiff, he would not be excused; hence the instruction
should not have been given without qualification. We do
not think the instruction was calculated to mislead the jury,
or was bad for the second reason suggested.
Tliere was no pretense or claim on the part of plaintiff that
aught but the act of defendants prevented the test being
made, and there was no evidence on his behalf directing the
attention of the jury to any other cause for not testing the
well. Nor, in view of the instructions given for defendants,
do we feel the jury were misled by omitting from their
instruction the conditions mentioned. The court gave four
instructions for defendants. The first informs the jury that
plaintiff must prove by a preponderance of the evidence that
he has bored and dug a well of the capacity to furnish eight
barrels of water daily for two days, upon a test thereof, before
lie can recover under the special count. The second was not
a proper instruction without some qualification. The third
informed the jury, if no time was specified when the well
should be finished, the law is that plaintiff should finish the
well within a reaAo?ialle time from the date conti'act was
made.
We perceive no error requiring the reversal of the judg-
ment and it is afiirmed. Judgment affirmed.
^
422 Appellate Courts op Illinois.
Vol. 89.] St. Louis Nat Stock Yards v. Tiblier.
The St. Louis National Stock Yabds
V.
SiLVEKE Tiblier.
Stock Yard Companies — NegUgence of— Failure to Properly Care for
Stock — Contributory Negligence — Evidence — Intttructions — Damages.
1. In nil action brought to recover from a stock yard company for injury
to stock alleged to have been occasioned through its negligence in leaving
the same exposed to stormy weather, this court holds, in view of the evi-
denoye, that the plaintiff was not guilty of contributory negligence as to the
giving of directions touching the care of the stock; that the jury were war-
ranted in finding that said stock was injured by being exposed to stormy
weather over night; that the admission in evidence of testimony as to the
conversation of the plaintiff with a yard foreman touching the care of the
stock was proper, and declines to interfere with the verdict for the plaintiff.
2. In such cases, the measure of damages is the difference in the market
value of such stock when received by the stock yard company and when
delivered to the consignor.
[Opinion filed February 2, 1891.]
Appeal trom the Circuit Court of St. Clair County; tlie
Hon. W. H. Snyder, Judge, presiding.
Appellee shipped from Kansas City to appellant a car load
of horses. The horses were intended for the New Orleans
market. They reached the stock yards in East St Louis
March 28, 1888, in the evening, over the C. & A. R. K. On
that evening, between five and six o'clock, appellee went to
the stock yards to look after his horses. He inquired for the
superintendent and was told that he had gone home. He
then went through the yards and found Mr. White, who was
said to be the foreman in charge of the horse department
He informed White that he had a car load of horses coming
in over the C. «fe A., from Kansas City, and that he wanted
them taken from the cars to the stables. White told him that
the horses would not probably arrive before eight o'clock.
Appellee told White that he was informed at Kansas City that
the horses would reach the yards about five o'clock. Appel-
Fourth District— ^August Term, 1890. 423
8(. Louis Nat Stock Yardfl v. Tiblier.
loe proposed to wait until the horses arrived, but White said
tlicre was no necessity for that; that his horses would be taken
care of according to his directions. Appellee had halters
with him which he gave to White, who assured him that his
instructions^ as to the care of the horses, would be carried out
Appellee went to the stables but the foreman in charge was
out; but he gave the stable boys some money and told them
to take good care of his horses when they reached the stables.
The night proved to be a stormy one and the weather was
threatening wiien appellee was at the yards. The liorses,
when they were brought into the yards, were put into the
pens, with sheds attached, and remained there until the next
morning, when they were taken to the stables, and were in
bad shape, had taken cold and several were sick and would
not eat. All of the horses but one were subsequently shipped
to New Orleans. Appellee claimed that the horses were
damaged $1,500 and in a trial before a jury he recovered a ver-
dict for $800, upon which judgment was entered, and the
stock yards prosecute this appeal.
Mr. M. MiLLABD, for appellant
Messrs. Fbanklin A. MoConaughy and John D. Johnson,
for appellee.
Reeves, J. It is urged that because appellee did not go to
the superintendent's office and leave his directions as to the
care of his horses, that he was guilty of such contributory
negligence as will prevent a recovery. The proof shows that
he inquired for the superintendent and was told that he had
gone home for the day. He then went into the yards and
sought out the man who, as he was informed, had charge of
the horse department of the yards. He gave his instructions
to him and was told that the same would be carried out; and
when appellee proposed to wait until the horses arrived and
see after them himself, he was told by this man, who appeared
to be in charge, that this would not be necessary — that his
instructions would be certainly carried out. Under the cir-
424 Appellate Courts op Illinois.
■
Vol. 89.] St. Louis Nat. Stock Yards v. Tiblier.
cainstances, we tliink the jury were fairly aathorized to lind
that appellee was without fault in the matter.
It is again urged that the evidence shows that the stock
was not injured while in appellant's charge. It is true that
the testimony was conflicting on this point, but there was
sufficient evidence upon whidi the jury might well find, that
the horses were seriously injured by being left in the pens
during the stormy weather of the night after their arrival.
Objection is also made to the admission of testimony as to
conversation of appellee with Mr. White, when appellee went
to see him about the horses. We think White, under the
circumstances shown by the evidence, was such an agent of
appellant as authorized appellee to deal with him in regard to
the care of his horses when they came into the yards; and, if
so, then conversations with him in relation to the matter were
properly admissible. The admission of Kennedy's letter, if
not proper, plainly did not injuriously aCFect appellant.
The instruction as to the measure of damages was certainly
correct. The measure of damages was the difference in the
market value in their condition when they were received by
appellant and their market value in the condition they were
when delivered to appellee. The objection really is that the
evidence did not show their market value when received and
when delivered by appellant to appellee. The fair interpre-
tation of the testimony of Eisfelder, taken in connection with
the other testimony in the case, is that the difference in the
market value of the horses when received by appel !ant and when
delivered by appellant to appellee, was from $800 to $1,000.
The second instruction does not assume to give tlie exact
measure of the damages, but is framed to show under what
state of facts appellant would be responsible for the damages
sustained by appellee. The statement that the third instruc-
tion assumes that the horses were in good condition when
delivered to appellant, is not supported by the language used
as we find it in the record. The fourth instruction correctly
states the law, as we have already held, under the facts
shown. We think the damages allowed not excessive under
the proof in the case. The judgment of the Circuit Court is
affirmed. Judgment affirmed.
Fourth District — August Term, 1890. 425
Osborne & Co. v. Meyerott.
D. M. Osborne ACo.
V.
Henry G. Meyerott,
Account — Balance Due — Recovery qf.
In an action to recover a balance alleged to be due upon nn account, fhia
court declines, in view of the evidence, to interfere with the verdict for the
plaintiff.
[Opinion filed February 2, 1891.]
Appeal from the Circuit Court of Randolph, County; the
Hon. Geokge W. Wall, Judge, presiding.
Mesers. R. £. Spbiog and J. J. Moerison, for appellants.
Messrs. W. M. Schuwerk and Alexaijdek Hood, for appel-
lee.
Green, J. Appellee brought this suit to recover balance
on account alleged to be due him from appellants. A verdict
and judgment tor $192.74 and costs of suit, in favor of plaint-
iff and against defendants, was entered in thp court below, aud
defendants took this appeal. The only ground for reversal
suggested is, that there is no evidence to support the verdict.
We can not sustain this contention. An examination of the
record satisfies us the finding of the jury was justified by the
evidence and we decline to disturb the verdict. The raistake
in the footing of the account attached to the declaration, if it be
a matter of any importance in the case, we think is Explained
by the erasure of an item of said account, without any author-
ity shown to erase the same. The amount of this item we
ascertain, by examining the account read in evidence, to be
$57.56, charged as commissions. The judgment is afiirmcd.
Judgment affinned.
426 Appellate Courts of Illinois.
- 1 > - 1^ II ■ I ■ - Ml ■ * ■■ ■■ -g n
Vol. 39. 1 City of Mt. Vernon v. Brooks.
/ S 428 The City of Mt. Vernon
112 «4i9| Isaac B. Brooks.
Municipal Corporafiona — Negligence qf— Personal Injuries — Cripple —
Defective Sidewalk — Municipal Warrants — Issuance of in Anticipation of
Collections— Sec. 2, Chap. X46, Starr dt C. IIL Stats.— Evidence— Instruc-
tions,
L Where municipal corporations omit the duty of erectinsf railings or
other fifuards on the sides of a walk adequate for the protection from dan-
ger by falling therefrom, of persons usins: the walk with ordinary care and
Ciiution in walking thereon, it will be sufficient to sustain a verdict for gross
negligence.
2. A cripple u<iing crutches has the same right to use a sidewalk as a
sound person, but must exercise a higher degree of care.
3. A city assuming to repair a sidewalk must do so in such a manner as
to render the same reasonab y safe for travel.
4. in view of Sec. 2. Chap. 146a,Starr & C. III. Stats., a municipal corpo-
ration will not be excused from repairing its sidewalks, there being no funds
in its treasury, if a tax levy is already made, against which warrants may
be issu(>d in anticipation of its collection by virtue of that section.
& A witness should not be cross-examined as to matters not touched
upon in chief.
6. In cases of this sort it is for the witness to give the facts as to the
condition of a given walk and the jury to decide as to its safety.
7. A city is bound to use ordinary care to keep its walks in a reasonably
Siife condition for persons using ordinary care and with the ordinary capac-
ity to care for themselves.
[Opinion filed February 26, 1891.]
Appeal from the Circuit Court of JeflEerson County; the
Hon. C. S. Conger, Judge, presiding.
Messrs. Pollock & Pollock, for appellant.
A party can not expose himself to danger and then recover
damages for an injury he might have avoided by the use of
reasonable precaution. Lovenguth v. Bloomington, 71 111.
238; City of Qiiincy v. Barker, 81 111. 300.
It is the duty of a person to use his eyes to direct his foot-
steps, and failing to do so is such negligence as will preclude
frum recovering. Kewance v. Depew, 80 111. 119.
Fourth District — February Term, 1890. 427
City of Mt. Vernon v. Brooks.
The burden of proof was on the plaintiflE to establish the
fact that, in view of his knowledge of the condition of the
walk as he claimed it to be, and his own crippled condition, he
exercised such precaution to avoid injury as a prudent man
would, but no such evidence of this kind can be found in the
record. The mere fact that he was injured affords no ground
for recovery wliere danger is actually known or apparent to
ordinary observation, or reasonably to be apprehended; proof
of positive or special care must be made to warrant a recov-
ery. C, B. & Q. R. R Co. V. Olsen, 12 111. App. 245, 251.
If the defendant contributed to the injury no recovery can
be had. Chicago & Alton R R v. Fietsam, 123 111. 518.
The fact, if proven, that the defendant may have been guilty
of gross negligence, will not entitle the plaintiff to recover.
Care on the part of the plaintiff is essential and must be
proven. Willard v. Swansen, 126 111. 381.
The plaintiff must show that he used due care and that the
injury was in no way attributable to him. Blanchard v. L.
S. & M. S. Ry. Co., 126. 111. 416.
A plaintiff who by his own want of ordinary care has con-
tributed to the injury complained of, can not recover no mat-
ter what the degree of the defendant's neglect may have been,
])rovided it is short of that which raises an inference of a wil-
ful and intentional wrong, and the doctrine of comparative
negligence does not apply in such case. C, B. & Q. R R v.
Dougherty, 12 111. App. 181.
No person was present with the plaintiff at the time of the
accident, and hence we can not have any further explanation
of tlie circumstances attending his fall. Courts can not draw
inferences or indulge in presumptions beyond the testimony
to sustain a verdict. The burden of proof of every fact neces-
sary to a recovery was on the plaintiff, and under the law as
stated in the foregoing cases, the evidence fails to show any
right of recovery, and the trial court should have set the ver-
dict of the jury aside upon this ground.
The rule is, where a person by the exercise of proper care
could have avoided the injury, no recovery can be had.
Wood's Mayne, 108.
428 Appellate Courts op Illinois.
Vol. 89.] City of Mt. Vernon v. Brooks.
There is no evidence in the entire record showing that any
other defect that may have been in the walk contributed iii
any way to producing the alleged injury, except the board
which w^as partially broken at one end, as stated by the plaint-
iff. And to this alone, as we understand the rule of law, the
inquiry should have been directed. The evidence shows that
•the piece of walk spoken of by the plaititiff and referred to by
some other of the witnesses, was about eight feet in length,
and although otlier parts of the sidewalk may have been in
an unsafe condition, no recovery can be sustained because of
any such defects until some one has suffered personal injury
therefrom. If we are supported in this position then
but little of the plaintiff's testimony has any bearing upon
the question in issue, and fails to support the finding of the
jury.
The plaintiff's witnesses make general statements by re-
ferring to the condition of that piece of sidewalk after the
cyclone on the 19th day of February, 1888, when a caboose
was thrown upon it, breaking it down, and that it remained in
about the same condition till a new walk was built there after
this accident happened. But as to when this beard was par-
tially broken, that the plaintiff claims caused him to fall, there
is no evidence, except so far as the statement of the plaintiff
may tend that way, when he says that he knew about it for
some time before that.
Whatever may have been the condition of the sidewalk
in question, if the city made reasonable efforts to keep it in
reasonably safe condition, the defendant is not liable. Chicago
V. McGiven, 78 111. 347; Rockford v. Hildebrand, 61 111. 155;
City of Quincy v. Barker, 81 111. 300.
The evidence for the defendant shows clearly that this
walk was totally destroyed by the cyclone of the 19th of Fel>-
ruary, 188S; that within a short time afterward the walk was
rebuilt in the best way it could bo done under the circum-
stances; that continued inspection was made of all the walks
and that neither of the officers of the city had anj notice of
any defect in it until after the happening of this accident,
when it was immediately repaired.
Fourth District — February Term, 1890. 429
City of Mt. Vernon v. Brooks.
* ' 1 I ■ I - I I I _- _ L
Mr. Samuel Laird, for appellee.
On everj question of fact presented to tlie jury in the case
it can not fail to be seen on the most superficial examination
of the record that tlie preponderance of the evidence is witli
appellee. Appellant cites Smith v. Slocum, 62 111. 354;
Ehrich v. White, 74 111. 481; Belden v. Innis, 84 111. 7S; Teu-
ton ia Life Ins. Co. v. Beck, 74 111. 165;* Ferkcl v. The
People, 16 III. App. 310-315, and Cochlin v. The People, 93
111.410. None of which authorities are in any way appli-
cable to this case, in our opinion.
The doctrine of the law is laid down by our Supreme Court
in a long and unbroken line of decisions, and in fact it is now
the settled law of the State, that juries and trial courts who
heard the witnesses testify and observed their demeanoi* on
the stand are the best judges of their credibility, and that
courts of appeal will not interfere with their conclusions un-
less the verdict is wholly unsupported by the evidence. White
V. Clayes, 32 111. 325; Ferry Co. v. Higgins, 72 111. 517; Cal-
vert V. Carpenter, 96 111. .63; Hays v. Houston, 86 111. 487; Lewis
V. Lewis, 92 111. 237; Kinsley v. Sampson, 100 111. 573.
Phillips, J. This is an action on the case bronglit by
ap|:)ellee against appellant to recover for personal injuries
received while passing along a sidewalk in the city of Mt.
Yernon, which is alleged to have been defective. It is alleged
that on the 25th day of Januar}^ A. D. 1889, a sidewalk \vas
built over a ravine, the bottom of which was about four
feet below the level of the walk, and which walk was only
three feet wide, constructed of plank laid on stringers rest-
ing on the banks of the ravine, and which was' without
railing along the sides of the walk at that point, and with one
side gagged about six inches lower than tl)e other, with loose
and broken plank laid on the stringers, and that the walk at
that point and both ways therefrom was unsafe and insecure
by reason of holes in the walk and loose plank thereon. It is
further alleged that the plaintiff, while using due care pass-
ing along said walk, stepped into a hole in the sidewalk and
fell from the walk into the ravine, and received severe inju-
)
430 Appellate Courts of Illinois.
Vol. 89 J City of Mt. Vernon v. Brookg.
ries. At the bottom of the ravine were broken brick on
which he fell. This walk was on a street much used and was
the direct route for appellee to pass in going to and from his
residence to his place of business.
The defendant pleaded the general issue and a special plea,
in which it was averred that prior to plaintiflE's injury the side-
walk in Mt. Vernon had been destroyed by a cyclone and the
defendant had been compelled to exhaust and expend all the
revenue applicable to building and repairing sidewalks before
such injury. The evidence shows the plaintiff is crippled and
requires the use of crutches to enable him to move on the
walks, and the only sidewalk over which he could pass from
his place of business to his home was this walk; that it was
out of repair with broken and loose boards and from the cause
and in the manner alleged, the plaintiff fell and was injured,
The sidewalk where it rested on stringers across the ravine
from bank to bank was about eight or nine feet long and no
railings were along the sides of the walk and none were
placed there at the time of its construction. It has been held
in repeated decisions of the Supreme and Appellate Courts of
this State that where municipal corporations omit the duty
of erecting railings or other guards on the sides of a walk
adequate for the protection from danger by falling therefrom,
of persons using the walk with ordinary care and caution in
walking thereon, it will be sufficient to sustain a verdict for
gross negligence. Joliet v. Yerley, 35 111. 68; Chicago v.
Gallagher, 44 III. 295; Springfield v. LeClare, 49 111. 476;
Sterling v. Thomas, 60 111. 264; Galesburg v. Higley, 61 111.
287; Chicago v. Langlass, 66 111. 361; Monmouth v. Sullivan,
8 111. App. 55; Carterville v. Cook, 29 III. App. 495. The
appellee, though crippled and necessarily using crutches to pass
along the walk, had the same right to use it as one not in his
condition. The only requirement of the law being that he
should use a higher degree of care consequent on his greater
liability to danger in passing thereon. The evidence author-
ized the jury to find that a sufficient degree of care was used
by the appellee, and it was so found. The evidence shows
that the sidewalks of the city had been destroyed by a cyclone
Fourth District — February Term, 1890. 431
City of Mt. Vernon v. Brooks.
previous to the time of appellee's injury and that this walk
liaci been destroyed with othei-s.
But it also appears that the appellant repaired the walk a1
this place, and the manner of repair was such that it was left
in an unsafe condition, without railing, where the walk bridged
the ravine. If the city assumed to repair the walk, its duty
was to so repair that it would be reasonably safe for persons
to travel over the same. This it failed to do. It is insisted,
however, that the city had expended all its revenue levied for
the building and repairing of sidewalks, and tlierefore was
without money to keep the same in repair, and was discharged
from its duty thereby. The testimony of the city treasurer
is that there was no money in the treasury from November
20, 18b8, to April, 1889. The appellee was injured on the
23d day of January, 1889, and the tax levy for 1889 had been
made but was not collected until April, 1889. By Sec. 2, Chap.
146, Starr & C. 111. Stats., municipal corporations may issue
warrants to the extent of seventy-tive per cent of levy already
made in anticipation of their collection. The city, therefore,
having the ri^it to issue its warrants in anticipation of its levy
then made, had means to provide for the repair of its side-
walk. There is not sufficient evidence in the record of want
of funds to. repair the walks to discharge the city from it^ duty
of keeping the game in repair. The appellant assigns as error
the ruling of the court in overruling and sustaining objections
to certain questions. Daniel Smith, a witness for appellee,
was asked : ^^At that time what was the general traveled
route for foot passengers down that street?" to which appel-
lant, by its counsel, objected, and the objection being overruled
that ruling is assigned as error. It was material to show the
use of the walk as one method of determining the knowledge
the officers of the city liad, or by the exercise of ordinary
diligence might have had, of the defects in the walk. But
the question was not answered by the witness and could not
have affected the verdict. Objection is, however, taken to
the language of the court in passing on this objection. Tlie
ruh'ng of Ihe court embraced more than was included in the
question, but it is apparent that the language used could not
432 Api^ellate Courts of Illinois.
Vol. 39.J City of Mt. Vernon v. Brooks.
— -
liave prejudiced appellant. William Muir, a witness for apjje^-
leo, stated he saw plaintiff fall, went to his assistance, etc.
He was not asked in chief as to the condition of the walk.
On cross-examination he stated he was in the habit of cross-
ing that walk, and was bj appellant's counsel then asked :
" Do you know whether there were any broken planks at that
time ? " to which appellee, by his counsel, objected, and the
objection being sustained appellant excepted. The witness
was not asked in chief as to the condition of the sidewalk and
the (]fue6tion was not tlierefore proper as a cross-examination.
Appellant oflPered as a witness one Thomas Jones, who
stated he had repaired the walkabout the time of the injury,
and was asked : '' What condition did 3'ou iind it in at that
time ? *' which (juestion was objected to and the objection sus-
tained and appellant excepted. (TJie witness, ^n further exam-
ination in chief, stated the time he was at the walk to repair
it and the condition in which he found it at that time;
appellant had the full benefit of the evidence sought by the
question to which the objection was sustained. The witness
was then asked in chief, '' State whether in your judgment
that walk was in a condition for people with ordinary legs to
walk over?" to which an objection of appellee was sus-
tainecj and appellant excepted. It is for the witness to give
facts to the jury, and whether the walk was reasonably safe
for persons to pass along is a question for the jury to deter-
mine from the evidence. This question asks for the opinion
of the witness as to the safety of the walk, and the objection was
properly sustained. The appellant asked the court to give
the following instructions among others: " And you are
further instructed for tlie defendant, that you can not justly
visit the misfortunes of the plaintiff upon the defendant, and
if you believe from a preponderance of the evidence that the
plaintiff was a cripple and used crutches to aid him in passing
along the sidewalk, and that from this fact resulted the injury,
or that this materially contributed to producing the injury, then
the plaintiff can not recover." " You are further instructed
for the defendant if, from a careful consideration of all the
evidence given to you upon the trial of tliis cause, you believe
Fourth District — February Term, 1890, 433
City of Mt Vernon v. Brooks.
that the cause of the injury complained of can as well be attrib-
uted to the want of due care on tliepart of the plaintiff, or to
the faet of his being in a crippled condition and using crutches
to assist him in walking, as to any negligence on the part of
the servants of the defendant, or if the carelessness of the
plaintiff or his crippled condition materially contributed to or
was nearly equal to the negligence of the servants of the
defendant in causing the injury complained of, then the
defendant can not recover,'* which were refused by the court,
and which refusal is assigned as error.
The iirst instioiction above ignores the question as to whether
the sidewalk was reasonably safe for persons to pass along the
same, and if unsafe for persons having the use of their limbs,
the fact that appellee was a cripple would not defeat his right
of recovery if he used care proj)ortionatc to his condition;
however that may be the court gave to the jury the following
instruction: " The court instructs the jury that it is not the
duty of the city in the construction and repair of its sidewalks
to provide against injury to a person in a crippled condition
any further than for persons having the ordinary use of their
physical powers; all it is required to do is to use ordinary care to
keep tlie walks in a reasonably safe condition for persons using
ordinary care, and with the ordinary capacity to care for them-
selves, and in that case if vou believe from the evidence that
plaintiff is a cripple and walks with cratches and is thereby
less able to care for and protect himself than persons having
the ordinary use of their physical power, he would be required
to take such additional care and precaution as his condition rea-
sonably requires," which correctly stated the law to the jury,
and it was not error to refuse appellant's instructions. The
judgment must be affirmed.
Judgment affirmecL
Vol. XXXIX 38
434 Appellate Courts of Illinois*
Vol. 39. J Deerinfir & Co. v. Washburn.
39 434
1418 15S
William Deering & Co. >
V,
Leroy Washburn, Sheriff.
Chattel Mortgages — Sale of Mortgaged Goods for Benefit of Mortgagee
and with His Consent — Fraud — Replevin,
•
1. Where it is agreed between the mortfntgor and mortgagee in a
chattel mortgage at the time the same is made, that the mortgagor may ppII
at retail in the usual course of business and at its market value any of the
property covered, the entire proceeds of Ruch sales to be turned over to the
mortgagee and the amount credited on the indebtedne.<is to secure which the
mortgage' was given, such under&tiinding or agreement renders the mort-
gage fraudulent in law and void as to creditors.
2. The contrary seems to be the case when the agreement is made sub-
sequent to the giving of the mortgage.
[Opinion filed February 26, 1891.]
Appeal from the Circuit Court of Fayette County; the
Hon. James A. Creighton, Judge, presiding.
The action is replevin brought by appellant to recover some
cultivators, plows, wagons and corn-planters from appellee,
the sheriff of the county, who had levied upon the chattels
by virtue of an execution in favor of Walter A. Wood Mow-
ing & Reaping Com[)any against one R. H. Miller. The case
was tried upon an agreed statement of facts, which is as fol-
lows: That on the first day of February, 1889, one JR. H.
Miller, of Vandalia, in this county, was indebted to plaintiff in
the principal sum of $1,498.26, with interest, evidenced by
his note, payable to plaintiff, dated January 30, 1888, due
October 1, 1888, drawing eight per cent interest per annum
from date, on which note nothing had been paid. That on
sa;d 1st day of February, 1889, the plaintiff, for a valuable
consideration, agreed with said E. H. Miller to, and did on
that day extend the time of payment of said note to Octol>er 1,
1889. That on said 1st day of February, 18S9, the said R. II.
Miller executed, acknowledged and delivered in proper form
Fourth District — August Term, 1890. 435
^— ^^^-^^^^——i — ^— ^ II I III .
Deering & Co. v. Washburn.
a chattel mortgage to plaintiff to secure the payment of said
note and interest, which chattel mortgage was on February
1, 18b9j duly entered on justice peace docket in the township
where said Miller resided, and filed for record and recorded
in book 76, at page 416 of records, in this county. That the
property described in said chattel mortgage included all the
property in controvers}', together with some other property.
That at the time said chattel mortgage was made, and during
the summer of 1889, and up to September 27, 1889, said Mil-
ler was engaged in selling hardware and agricultural imple-
ments at retail, and by virtue of an understanding entered
into between said Miller and plaintiff at the time of executing
and delivering said chattel mortgage, said Miller sold a portion
of the property described in the chattel mortgage at retail in
his usual course of business and at its market value, and the
entire proceeds of such sales made by said Miller, amounting
to $425, were turned over to plaintiff by Miller in full of pro-
ceeds of sales, on November 14, 1889, and were on that day
duly credited by plaintiff on said Miller's note, secured by said
chattel mortgage. That at the time of making said chattel
mortgage, and understanding that Miller might sell a portion
of said property, it was further agreed between plaintiff and
said Miller, that said Miller should have no beneficial interest
in such proceeds, except the right to have them credited on
said note, and should retain no portion of such proceeds what-
ever, but should make such sales with the consent of plaintiff
and for plaintiff's sole and exclusive benefit, except that the
proceeds were to be credited on said Miller's note; and that
said Miller did surrender to plaintiff the entire proceeds of
said sales, and retained no portion whatever, and plaintiff gave
said Miller credit on said note for the full amount of said sales.
That at the time of giving said chattel mortgage the property
was in said Miller's warehouse at Vandalia, Illinois, with other
property Miller had for sale in his regular business (which
warehouse was separate and distinct from Miller's salesroom
and some two blocks distant therefrom), and remained until
this replevin was brought, except such portion as was sold by
Miller, and the portion sold by Miller remained in said ware-
436 Appellate Courts of Illinois.
Vol. 39.] Deerinsr & Co. v. Washburn.
house until sold. That on the 27th day of September, 1S89,
the Walter A. Wood Mowing & Reaping^ Machine Company
obtained a judgment in the Circuit Court in this county
against said Miller for $3,547. That on September 27, 1889,
an execution was issued on said judgment, and on the same
day said execution was placed in the hands of the defendant,
who was then and there sheriff of said county, to execute, and
the defendant on said September 27, 1889, before plaintiff's
chattel mortgage was due, indorsed on said execution a levy
of the property described in plaintiff's declaration, and other
property in the same warehouse, but did not remove the same
to any other building, but locked it up in the same building
and retained possession of the key to the building. That on
the 30th day of September, 1889, before plaintiff's chattel
mortgage was due, it demanded of tlio defendant the posses-
sion of the property mentioned in the plaintiff's dcQlaration,
and the defendant refused to deliver the possession thereof.
Either party shall have the right to introduce at the trial
the note and record of said chattel mortgage, to be consid-
ered in connection with the foregoing facts, and in addition
thereto, without making proof of the loss of the original
mortgage.
The note and the record of the chattel mortgage were
introduced in ev'dence by appellant, the plaintiff below.
The Circuit Court found for the defendant, and the plaintiff
brings the case to this court by appeal.
Messrs. Cox & Wills for appellant
Messrs. John A. Bingham and Wood Eros., for appellee.
Reeves, J. The contention of the appellant is clearly
stated in this language : "An agreement in or outside a chattel
mortgage, whereby the mortgagee authorizes the mortgagor
to sell a portion of the property covered by the chattel mort-
gage, for the sole and exclusive benefit of the mortgagee in
payment of the debt secured, the mortgagor to have no bene-
ficial interest in the proceeds of sale, docs not vitiate the
mortgage per se^ as between mortgagee and third parties, but
Fourth District — August Teem, 1890. 437
- - I .1 I I _ I , _ - I - -I-'
DeeriDfif & Co. v, Washburn.
if entered into in good faith and honestly carried out, will bo
upheld." The case of Goodheart v. Johnson, 88 111. 68, is
cited in support of the proposition submitted. It must be con-
ceded that on first reading, the opinion in this case seems to sup-
port the proposition of appellant However, it will be noted
that the permission given by the mortgagee to the mortgagor
to sell a portion of the mortgaged property, and turn over
the proceeds to the mortgagee, was not given at the time
the mortgage was made. Hence, the mortgage when made
was a valid one. The court held that the subsequent arrange-
ment by which consent was given by the mortgagee to the
mortgagor to sell the property at public or private sale, the
proceeds of such sale to go to the mortgagee, did not make
the mortgage fraudulent in law and void as to creditors.
The fact of such consent taken in connection with the sales
made in pursuance of such consent, the court say, might
rightfully be considered in determining the question whetlier
the mortgage was originally made to hinder and delay cred-
itors. In this case it was agreed that at the time the chattel
mortgage was made, there was an understanding by which
Miller was to sell at retail in the usual course of business and
at its market value any of the property mortgaged, the entire
proceeds of such sales to be turned over to the mortgagee
and the amount credited on the indebtedness to secure which
the mortgage was given.
As we understand the decisions of our Supreme Court, such
an understanding or agreement entered into at the time the
mortgage is made renders the mortgage fraudulent in law and
void as to creditors. Davis v. Ransom, IS 111. 396; Barnet v.
Fergus, 51 111. 354; Dunning v. Mead, 90 111. 376; Greene-
baum v. Wheeler, 90 111. 296; Huschlo v. Morris, 131 111. 587.
The exhaustive argument furnished us by appellant's counsel,
urges with much force and reason in favor of sustaining the va-
lidity of the mortgage in question, fortified by the decisions of
the courts of last resort of other States; but in the face of the
decisions of the Supreme Court of this State we feel com-
pelled to hold that the decision of the question by the Circuit
Court was correct The judgment of the Circuit Court is
affirmed. Judgment affirmed.
438 Appellate Courts op Illinois.
Vol. 39.] Minter v. The People.
39 438
'I^Lm F. E. MiNTEB
V.
The People of the State of Illinois.
Contempt — Refusal to Testify before Grand Jury — Crimination of Self,
1. To entitle a witness to the privilegre of not answering a question as
tending to criminate him, the court mnat see from the nature and circum-
stances of the evidence which the witness is asked to give, that there is
reason to apprehend injury if he is compelled to answer, and where that is
made to appear, much latitude will be allowed him in determining the
effect of any particular question. The danger to be apprehended mu»t be
real and not ima«rinaTy.
2. The law wiH not permit a man to keep the names of those who violate
the law, and their offenses, secret, because of a fear that they might give
evidence in their turn against him.
3. Testimony going to show that the witness giving it had seen a certain
person play cards for money, does not furnish or tend to furnish evidence
against such witness of a criminating character, nor will the fact that the
witness was engaged in the game, excuse him from answering.
[Opinion filed February 26, 1891.]
In eeror to the Circuit Court of Gallatin County; the Hon.
C. C. BoGGS, Judge, presiding.
The plaintiff in error was a witness before the grand jury
and answered that he knew of cards being played for money
in Gallatin county within eighteen months last past, and was
then asked by the foreman, " Who did you see playing?"
which question he refused to answer, whereupon he was
brought before the court and admitted the facts as above.
The court then ruled and stated to him that he was not
required to give evidence against himself, nor to give evi-
dence that would tend to criminate himself, but that he was
required to answer whether or not he had seen any person
other than himself play at cards for money; that he might
lawfully refuse to tell anything that he himself had done, but
that he could not lawfully refuse to tell what he had seen
another person do. Plaintiff in error then asked if the court
held that a witness before a grand jury was required to tell
Fourth District — August Term, 1890. 439
Minter v. The People.
that he had seen others gaming for money if the witness was
aleo playing at the same time and in the same game with such
other persons, and the court tlierenpon ruled tliat under such
circumstances the witness was bound to tell that the others had
played, but that he (plaintiff in error) might lawfully refuse
to tell anything that he himself had done or said, or anything
that tended to ci'iminato himself, but that he must tell if he
bad seen others play; that the fear that his answer might
induce the other parties to testify against him in retaliation,
or that the grand jury might summon the others and force
them to tell, was not a lawful reason for refusing to answer
the question. . To which holding and ruling of the court the
plaintiff in error excepted then and there. The court then
inquired of plaintiff in, error if he would, under such holding
and ruling, if returned to the grand jury room, answer the
question asked him by the foreman, and plaintiff in error said
he would not answer it under such rulings. Whereupon the
court adjudged plaintiff in error guilty of contempt, and
assessed a fine against him of $25 and costs as a punishment
for such contempt, to all of which plaintiff in error then and
there excepted.
Messrs. Pillow & Millspaugh, for plaintiff in error.
No appearance for defendants in error.
Phillips, P. J. To entitle a witness to the privilege of not
answering a question as tending to criminate him, the court
must see from the nature and circumstances of the evidence
which the witness is asked to give, that there is reason to
apprehend injury if he is compelled to answer, and where
that is made to appear, much latitude will be allowed him in
determining the effect of any particular question. The dan-
ger to be apprehended must be real and not imaginary. The
witness himself is not the sole judge whether his evidence
will bring him into danger. The judge must see and deter-
mine from the circumstances of the case, and the nature of
the evidence, whether there is reasonable ground to appro-
440 Appellate Courts of Illinois.
Voi. 39.J Minter v. The People.
liend danger. The witness was by the judge told that he
need not answer any question as to what he had done or
said, that tended to criminate him, but he must tell if he
had seen others play at cards for money, and this, the wit-
ness said he would not answer. Can it be pretended that, if
his answer had been he had seen ''A" play at a game for money,
that it furnishes, or tends to furnish, evidence against himself ?
Under that, evidence that "A" was guilty of playing a game of
cards for money would be shown without necessarily proving
who was in the game with "A." And the answer could not
tend to criminate the witness or furnish a link in a chain of
circumstances to make a case against the witness. Nor would
the fact if the witness was engaged in the game at the same
time excuse him from answering ; nor that he might fear
"A" might be called to testify against him be an excuse for
refusing to answer the question.
The law will not permit a man to keep the names of those
who violate the law, and their offenses, secret, because of a fear
that they might give evidence in their turn against him. To
admit such a rule would make such protection to those engaged
in gaining, that all who entered a gaming house and played,
could be protected by a claim of privilege on the part of
others engaged in playing and make that privilege an induce-
ment to those present to engage in gambling and thereby
encourage gambling and thus defeat prosecutions for a viola-
tion of the statute by engaging in the game. While the
question originally asked by the foreman should have had
added to it some such term as, " not naming or including your-
self," yet when brought before the court and fully and cor-
rectly informed as to his rights, which, under the ruling were
protected, he still declared that he would not answer the ques-
tion, under such declaration and refusal to answer he was in
contempt of court. Ward v. The State, 2 Mo. 98, and Smith
V. The People, 20 111. App. 591. The judgment is affirmed.
Judff?ne7it affi7*mcd.
Fourth District — August Term, 1890. 441
Robinson Floating Museum Co. v. Ilauptmann.
The Eugene Robinson Floating Museum Company
V.
Peter Hauptmann.
Contracts — For Use of Boat — Recooeryfor^
In an action brought to recover upon a contract touching the use of a
certain boat, this court declines, in view of the evidence, to interfere with
the verdict for the plaintiff.
[Opinion filed June 9, 1891.]
Appeal from the Circnit Gonrt of St. Clair County; the
Hon. B. R. Burroughs, Judge, presiding.
Mr. Andrew M. Sullivan and Marshall F. McDonald,
for appellant
Mr. E. L. Thomas and R. W. Eopiequet, for appellee.
Reeves, J. It is urged that the evidence in the cause was
not sufficient to justify the verdict. We have carefully
examined the evidence and find tliat while it was conflicting
there was suflSciont, if the jury gave credit to the witnesses
for the plaintiff below, to support tlie verdict. Complaint is
also made that the trial court refused proper instructions
asked by appellant, the defendant below. There was testi-
mony pro and con^ on the question as to whether the boat to
recover for the use of which this suit was brought, was in
good and complete running order when delivered to appel-
lant as the contract of hiring required it should be. In
whatever condition it was the appellant accepted and used it,
as the evidence clearly shows. Under this state of facts we
think instructions numbered one to five inclusive, wore prop-
erly refused. All the law of the case, in view of all the evi-
dence in tlie case, was embraced in appellant's given instruc-
tions. Instruction number six was misleading. The plaintiff's
evidence was that at Memphis there was talk about appellant
442 Appellate Courts of Illinois.
Vol. 39.] Robinson Floating Mu»eum Co. v. Hauptmann.
not using tho boat any longer but that finally it determined to
continue the use of the boat, and appellee testified its furtlier
use was to be under the original agreement This appellant
denied, but if the jury believed appellee, ho was plainly
entitled to recover for such further use under the original
agreement. Instruction number seven was faulty because it
exchided from the consideration of tho jury the ques.tion
whether the damage spoken of was or was not the result of
the negligence of the appellant's.servants.
Instruction number eight was proi)erly refused, as it re-
ferred to instructions which had been, and, as we think, prop-
erly refused. The instructions given for appellant state the law
for appellant fairly and as fully as it should have been given
to the jury. We perceive no error in the instructions given
for appellee. The objection that is urged, that one witness
was permitted to use a memorandum in giving his testimony,
we do not regard as well founded. Under the facts dis-
closed, as we find them in the record, we do not think there
was any error in permitting the witness to use the memoran-
dum for the purpose which he did use it. It is also urged
that the trial court erred in not sustaining the motion to
quash the writ of attachment It is a suflBcient answer to
this to say that after the writ of attachment was served,
appellant entered into a forthcoming bond and thereby
obtained possession of the property attached. The antbunt
of the verdict was less than the testimony would have war-
ranted. Finding no error in the record, which should reverse
the judgment, the same is afiSrmed.
Judgment affirmed.
Fourth District — August Term, 1890. 443
St. L., A. & T. H. R. R. Co. v. Russell.
The St. Louis, Alton & Terre Haute Railroad
Company
V.
John R. Russeld.
Railroads — Negligence of-^Itijury to Stock — Crossings — Signals.
1. A railway enprineer seeing domestic animals grazing near a crossing,
is not bound for that reason to stop or slow his train.
2. It is the duty of such engineer to slow or stop his train when sncb
stock is on the crossing, or in such proximity thereto that a collision may be
expected.
3. The engineer must, in such casos, use reasonable care and diligence in
Ihe management of his train to prevent injury to stock.
4. An instruction should not define particular acts in a given case as
negligence.
[Opinion filed June 9, 1891.]
Appeal from the Circuit Court of Williamson County;
the Hon. It. W. McCartney, Judge, presiding.
Messrs. Clemens & Warder, for appellant
Messrs. Duncan & Rhea, for appellee.
l/HiLLTPS, P. J. This was an action on the case brought by
appellee against appellant for killing stock at a public road
crossing by appellant's locomotive. The appellee claims there
was negligence in the management of the train by appellant's
employes. The evidence shows several head of animals
were grazing along the side of the public highway at a dis-
tance of about forty yards from where the railroad crosses the
same, and as the train approached the crossing, the animals
started to run across the track, and one that was grazing far-
thest from the crossing was struck and killed at the crossing.
The negligence claimed to exist was, that the animals, where
grazing, could be seen from the locomotive for a distance of
about three hundred and ninety-one yards, and it is further
444 Appellate Courts of Illinois.
Vol. 39.] St. L.. A. & T. H. R. R. Co. v. Russell.
claimed that the statutory signals were not given and that no
whistle was sounded until within about three hundred yards
of the crossing;. The public highway runs east and west, and
the raih'oad runs diagonally across the same. Three witnesses
swear the bell was rung as required, while one swears he did
not hear the bell. But one witness testified from observation
to the circumstances of the killing of the horse. He was at
his house, several hundred yards away, and saw several head
of animals grazing about forty yards west of the crossing, and
when the train whistled, the animals started to run along the
public highway.
The train was running at a high rate of speed, and as
testified to by the engineer, was running nearly thirty miles
an hour when the animal was struck. The negligence
claimed, is in failing to see the animal. The engineer testifies
that he did not see the animal that was struck until it came
on the road in front of the train, at almost the moment it
was struck. The fireman says that as the animal came run-
ning across he said to the engineer, ''Look out," and the ani-
mal jumped on the track in front of the train; but had the
engineer seen the animal coming down the lane, that fact
would not have required him, in the exercise of proper care,
to stop or slow the train. It would not have furnished
any reason to suppose the animal would continue to come on
and attempt to cross the track immediately in front of
the train. In relation to the signals, tlie train hands were pes*
itive they were given ; the plaintiff's witnesses did not hear
them. While that was a question for the jury, yet how
could it be said that if the whistle had been sounded a
quarter of a mile away, or if the bell had been rung at a point
a quarter of a mile distant and kept ringing continuously np
to the crossing, that it would have prevented the accident?
There is no evidence in the record to show that it could have
in any manner prevented it, and when the train emerged
from the cut approaciiing the crossing, a distance of three
hundred or four hundred yards, the noise of the train start-
ling the animals, does not afford a conclusion that if th« bell
had been rung and kept ringing a quarter of a mile beyond
Fourth Disteict — August Term, 1890. 445
St. L., A. & T. H. R. R. Ck>. v. Russell.
the point, that it would have prevented the accident. The
fourth instruction asked by the appellee was, that if the
animal was killed by a passing ti^in of cars, and before it was
killed it was in view of the engineer and fireman of the train,
and that it was seen or could have been seen by them with
tlie use of ordinary care and attention, in time to have slack-
ened the speed of the train and avoided the accident, and that
no oiforts were made by them in that direction, then this was
such negligence as rendered the company liable. This
instruction omits a material question. The law does not
require a train to be stopped or slackened because an animal
may be in plain sight from the engine as it grazes on the
highway fifty or sixty yards from the railroad crossing. It
must be on the crossing or in such proximity thereto that a
collision may reasonably be expected by those in charge of
the train, unless the train be slackened or stopped. The fifth
instruction asked by the appellee is, that if the jury believe
from the evidence that the plaintiif's mule was killed by the
engine or train of the defendant wliile on the crossing, and
that the persons in charge of the train or engine could have
seen the mule on the track, or in dangerous proximity
thereto, in season to have stopped or slackened the speed of
the train, and prevented the injury, and did not see said mule,
or seeing it in season to have avoided the injury did not
do so, then they would be gnilty of such negligence, for which
the company would be liable. The engineer in charge of the
engine is required to use reasonable care and diligence in the
management of the train to prevent injury to stock, and this
is the extent to which the requirement goes; but as presented
by this instruction, the question of reasonable care and dili-
gence is omitted, and the liability placed on the grounds of it
being possible to see the mule and not whether, in the exer-
cise of reasonable care and diligence, it could have been seen.
The instructions are further erroneous in defining the partic-
ular acts as being negligence. The fourth and fifth instruc-
tions are erroneous in these particulars, and the judgment
must be reversed and the cause remanded.
lieversed and remanded.
446 Appellate Courts of Illinois.
Vol. 39.] Com v. Board of Education.
Millard N. Corn
V.
Board of Education.
Schools — Sala)^ qf Teacher — Action to Recover — Destruction of School
Rouse — Tornado.
1. Neither party to a contract entered into between a school board and
teacher, whereby the latter is employed to teach a certain school upon a
Ralary named, is discharged from observing the conditions thereof by reason
of the destruction of the school house, in the absence of any provision therein
touching such possible occurrence.
2. The inability of the school board to procure another building for
school purposes would not in such case, in the absence of such provision,
absolve it from a liability for salary.
[Opinion filed June 9, 1891.]
In eeeor to the Circuit Court of Jeflferson County; the
Hon. W. C. Jones, Judge, presiding.
An action of assumpsit was brought by plaintiflE against
defendant in error in the Circuit Court of Jeflferson County,
on a written contract, viz.: " This indenture witnesseth that
Millard N. Corn, party of the first part, agrees to teach
seventh grade in east end building in public schools of Mt
Vernon, Illinois, known as District No. 1, Town 2, Eange 3,
east of the Third Principal Meridian, in accordance with the
following stipulations : First, he will faithfully discharge his
duty as a teacher under the guidance and direction of the
superintendent, and in accordance with the adopted regula-
tions of the board and the law of the State of Illinois; second,
he will attend Jeflferson County, Ilh'nois, Teachers' Institute
at least four days, if held in the fall before the opening of
school or during winter holidays, unless excused by the resolu-
tion of the board; third, he will attend the meetings of the
Jeflferson County, Illinois, Teachers' Association at least once
each month if the meetings occur on Saturday and during the
months when school is in session, or will otherwise attend upon
Fourth District — February Term, 1890. 447
Corn V. Board of Education.
special instmction of equal import by the superintendent at
least once each month, unless excused by the superintendent;
fourth, he hereby affirms that be holds a valid teacher's cer-
tificate of the sec(«nd grade covering the time for which he
is engaged to teach under this contract; fifth, he agrees to
perform said services for four consecutive months, beginning
January 19, 1888, and exchiding such vacation as the board
may see tit to interpose; sixth, he agrees to perform said
services as above specified ior the sum of $45 per legal school
month; seventh, he furthermore agrees to the additional stipu-
lation made below by the board as the party of the second part:
"We, the Board of Education of Mt. Vernon, Illinois,
known as District No. 1, Town 2 (two), Range 3 (three),
east of the Third Principal Meridian, party of the second part,
do hereby covenant and agree to employ said party of the first
part as a teacher in the school above specified and under the
conditions as above stipulated by said party of the first part,
and according to the following additional stipulations : first,
we agree to pay to Millard N. Corn on discharge of duties as
above specified, a salary of $45 per legal school month; second,
we agree to deduct a proportionate amount of said salary for
every day's absence from duty, unless otherwise ordered by
resolution of the board; third, we agree to deduct from said
salary an amount equal to one day's pay for every four cases
of tardiness made by said party of the first part as tardiness
on the part of teachers is defined per our adopted regulations;
fourth, we agree in consideration of item two, as stipulated
by said party of the first part, to allow at least an equal number
of days as vacation between Christmas and New Year with-
out a deduction of salary; fifth, we agree on evidence of the
discharge of duties as above specified, and on presentation of
a schedule as required by law, to issue an order on the treas.
urer of Mt Yernon township, for the amount due said party
of the first part, at the end of each school month; sixth, we
reserve the right to discharge said party of the first part on
proof of incompetence, gross neglect of duty, or for any other
cause which may seem suflicient to us as empowered by the
law of the State of Illtnois. Signed this 16th day of January',
1888, at the city of Mt. Vernon, Illinois.
448 Appellate Courts of Illinois.
Vol. 39.] Corn v. Board of Education.
Millard N. Corn, party of the first part.
James M. Pace, President.
Michael Bcrgess, Secretary of the Board of Education,
party of tlie second part."
To that declaration defendant pleaded general issue and a
special plea, which avers that after the making of said con-
tract mentioned in the declaration, to wit, on February 19,
1888, the defendant was prevented from carrying out, com-
plying with and completing said contract, by an act of God
or visitation of Providence, to wit, by the destruction of its
school building, in which plaintiflE was employed to teach
school, by a tornado, of which plaintiff had notice, and
defendant avers that then and there said contract was then
and there voided and annulled; and defendant avers that
after the destruction of its said building it endeavored to
procure other suitable and sufficient buildings in which to
teach or have taught the schools of said district, but was
unsuccessful, of which plaintiff then and there had notice,
and this tlie defendant is ready to verify. A demurrer was
interposed to the special plea, which was overruled, and issue
joined on both pleas. A jury was waived by the court and
a verdict for defendant and judgment against plaintiff for
costs. Plaintiff assigns as error that the verdict was against
the law and the evidence and the court erred in overruling the
motion for a new trial and in entering judgment against the
plaintiff for costs,
Messrs. Webb & Webb and William 11. Green, for plaintiff
in error.
All that plaintiff in error was required to aver and prove
was the contract, the possession of a teacher's certificate of the
second grade, the failure of the board of education to furnish
a room, or house; and his readiness and willingness to teach.
School Directors v. Roddick, 77 111. 628.
The contract entered into between plaintiff in error and
defendant in error was an absolute one, only conditional as to
a few minor requirements, and with these he strictly com-
plied, and no question of their performance was raised at the
trial below. By their contract, defendant in error agreed to
Fourth District — February Term, 1890. 449
r. 1 — '
Corn V. Board of Education.-
employ the plaintiflE in error to teach school for a period of
four months at a salary of $45 per month. It was a contract
to do a thing possible in itself, without condition, and tlie
promisor is liable for the breach thereof, even though it was
beyond tlieir power to perform it, for by their unconditional
contract they ran the risk of undertaking to perform it,
when they mifijht have provided against it by contract.
Walker v. Tucker, 70 111. 543; Chitty on Cont. (5th Am. Ed.)
1070, and note x; Paradine v. Jaine, Aleyn, 27; Parsons on
Cont, 5th Ed., Vol. 1, page 556, note n.
Where an unconditional contract ifl made, the promisor
must be the one to suflFer for a breach of it, if he fails to
embrace the opportunity when making it, to provide against
it Id.; School Trustees v. Bennett, 3 Dutch. 513.
In the case of Steele et al. v. Buck et al., 61 111. 344, the
Supreme Court, after an exhaustive review of the authorities,
both American and English-, held that where a contract is
entered into by parties wherein they covenant to do or per-
form certain things, the contract is binding and absolute,
unless the parties by their contract provide an excuse in case
of destruction of the property; that if the loss occurs, the law
will let it rest upon the party who has contracted that he will
boar it. Bacon et al. v. Cobb et al., 45 111. 47; Mill Dam
Foundry v. Hovey, 21 Pick. 441; Deniott v. Jones, 2 Wallace,
1; School Trustees v. Bennett, 3 Dutch. 518; Bullock v. Dom-
mitt, 6 Term. 650; Brennocks v. Pritchard, 6 Term. 750; 3
Bos. & Pul. 420.
Mr. Albert Watson, for defendant in error.
Plaintiff in error demurred to the special plea but did not
elect to stand bv liis demurrer; hence it is conceded that the
dispensation of Providence is a release of the defendant's
liability under the contract But in this court by his brief
he seeks again to raise the same law question, which we think
lie can not do. His demurrer was waived by pleading over
I. & St L. K. K. Co. V. Morgenstern, 106 111. 216; Mc-
Laughlin v. People, 17 111. App. 306; Barnes v. Brookman,
107 111. 317; Waiker v. Welch, 14 lU. 277.
Vol. XXXIX 29
450 Appellate Courts of Illinois.
'' ..11 ,. ,1 , i.i.ii, I
Vol. 39. J Corn v. Board of Education.
No propositions of la\y were submitted to the trial court,
and this furnishes another reason why the law question men-
tioned will not be considered in this court. Fitch v. Johnson,
104 III. Ill; Bridge Co. v. Highway Comm'rs, 101 III. 518;
Hobbs V. Ferguson, 100 III. 232; Tibballs v. Libby, 97 111. 552;
N. W. Mut. Aid Ass'n v. Hall, 118 111. 169; Farwell v. Shove,
105 111. 61; Kclderhouse v. Hall, 116 111. 147; Hardy v. Eapp,
112 HI. 359; Ins. Co. v. Sea, 21 Wall. 158.
If, however, the court considers the question mentioned,
we think the authorities cited by plaint iflE in error thereon are
not in point An examination of those authorities will show
that they apply to contracts between private pei*8ons, or
where the private party to the contract sought to be relieved.
But in no case where the precise question stated below was
presented will it be found that the public corporation or
municipality was not released from a contract by act of God.
The distinction we make is this: Private persons are bound
by the terms of their undertakings unless they expressly pro-
vide for their release by dispensation of Providence; but a
public corporation, e. g,, a common carrier or a school district,
being required by law or public necessity to discharge a cer-
tain duty toward the public, not for its own profit necessarily,
but for the convenience, comfort, safety and well being of
the people, is released from such duty and its -concomitant
obligations by providential interference, and that without
the necessity of inserting such a provision in its contracts.
Morgan's Addison on Contracts, 3d Am. Ed., Yol. 1, 479,
480; Kiley v. Home, 5 Bing. 220; Elliott v. Kussell, 10
Johns (N. Y.) 1; Jamison v. McDaniel, 25 Miss. 83; Phila-
delphia & C. R K. Co. V. Anderson, 6th Am. & Eng. E.
R. Cases, 407; Livesay v. Philadelphia, 64 Pa. St., 106;
Nashville, etc., E. RCo. v. Davis, 6 Heisk. 261; Same v.
King, lb. 269; Ballentine v. North Miss. K R Co., 40 Mo.
491.
The plaintiff in error lias modeled his proceedings in this
case upon the files and papers found in the case of Scott
Crews V. School Directors, 23 111. App.. 367. The posi-
tion we state above is, we think, sustained by that case.
Fourth District — February Term, 1890. 451
Corn V. Board of Education.
the court by converse statement clearly holding that had
the fulfillment of the school directors' contract been made
impossible by act of God they would not be held bound
by its terms. This position is also sustained by the court in
the case of Steele et al. v. Buck, 61 111. 343, also cited by
plaintiff in error, the court there adopting the language
(p. 34:8) of Chief Justice Shaw, in the case there cited: "The
distinction is now well settled between an obligation or duty
imposed by law and that created by covenant or act of the
party. "When the law creates a duty, and the party is dis-
abled from performing it, without any fault of his own, the
law will excuse him."
It is apparent from the nature of this contract that the
continued existence of the school house was presupposed, and
therefore the cimdition is implied that if performance became
impossible by the perishing of (say) Mr. Corn or the school
house, that would excuse performance. Chitty on Contracts,
11 Am. Ed. 1076, quoted with approval in Walker v. Tucker,
70 111. 543.
The other cases cited by plaintifiE in error will be found
referred to and commented upon in above mentioned cases of
Walker v. Tucker and Steel et al. v. Buck.
There was a controversy in the trial below on the question
of fact raised by the special plea, viz., the inability of the
defendants to procure suitable and sufficient buildings in which
to conduct the schools of the district.
No motion for a new trial was made in the court below and
preserved in the bill of exceptions, and hence under the rule
announced in Wolf v. Campbell, 23 111. App. 482; Gregory v.
Spencer, 3 111. App. 80; Fireman's Ins. Co. v. Peck, 126 111.
493, and cases therein cited, the finding of the trial court on
the issue of fact will not be reviewed by this court. An
attempt is made to save this point by a recital that such
motion was made, and reasons assigned therefor, but as there
was in fact no motion ever placed on file or submitted to the
court, we do not think the omission can be, or ought to be,
supplied in the manner indicated.
Should the court, however, hold to the contrary, we then
452 Appellate Cofrts of Illinois.
Vol. 39.] Corn v. Board of Education.
respectfully submit that there is abundant evidence in the
record to sustain the finding of the trial judge, which is suffi-
cient, where the evidence is conflicting and contradictory, to
entitle us to an affiimance of the judgment. S[nise1y v. Samp-
son, 100 111. 573.
Upon questions of fact in trials on the law docket the find-
ings of a nisi priics judge are given the same weight as a
verdict of a jury. Travers v. Worms, 13 III. App. 39;
Nimmo v. Kuykendall, 85 HI. 476; Wood v. Price, 46 111.
435; Thomas v. Rutledge, 67 111. 213; Vogt v. Buschman,
63 111. 521.
The verdict of jury will be sustained if there is evidence in
the record to support it, even if the evidence was conflicting
and inconclusive, the Supreme and Appellate Courts uniformly
saying the juries and trial courts have the best opportunity
of judging of the credibility of witnesses and weight to be
given to their testimony. Calvert v. Carpenter, 96 111. 63:
Armoury. McFadden, 9 III. App. 508; Hays v. Houston, 86
111. 487; Lewis v. Lewis, 92 111. 237; Cohen v. Schick, 6 111.
App. 280.
Without waiving our right to ask an affirmance of the
judgment for the reasons hereinabove mentioned, we insist
the finding was right upon a consideration of all the evidence
in the case.
Phillips, P. J. The evidence shows the parties entered
into that written agreement, and after the destruction of the
school house, the plaintiff was re^dy and offered to teach in
accordance with thecontiact. The board of education pro-
vided rooms in which school was carried on, and certain teach-
ers continued in employment. No building was furnished
the plaintiff in which to continue his duties under the con-
tract, though he was ready and offered to comply therewith.
He had taught and received pay for one month, and the resi-
due of time he was employed under the contract was three
months at $45 a month, and at the time of employment he
held a teacher's certificate of second grade. The destruction
of the building as alleged in the second plea was shown.
Fourth District — February Term, 1890. 453
Consolidated Coal Co. of St. Louis v. Peers.
There is conflicting evidence as to whether another bailding
could have been procured, but it appears from the record
that the court held the second plea set up facts which con-
stituted a defense to the action, and on those facts so shown
the verdict and judgment was entered. The contract did not
by its terms provide that the school board would be dis-
charged from compliance with its terms by reason of the
destruction of the school house. Tiie discharge of either
party to the contract would not result as a matter of law
because of the destruction of the building. Neither would the
school board be discharged from liability on their contract by
reason of the destruction of the school house, and their inability
to procure another building. If it had been desired to discharge
either party from the contract for such cause, the contract should
have so provided. Steele et al. v. Buck et al., 61 111. 344;
School Trustees v. Bennett, 3 Dutch, 513. The plea set up
no defense to the action, and the finding was against the law
and evidence. It was error to overrule plaintiff's motion for
new trial. The judgment is reversed and the cause remanded.
Jieversed and remanded.
l&O* 344
The Consolidated Coal Company of St. Louis
V. ' ^ 45:^1
; 60 o06|
Joshua S. Peers and Adeline C. Peers.
Landlord and Tenant — Leass of Coal Lands — Royalty — Action for
Recover^ of— Guaranty.
1. After an assigrnment over, the assignee of a lease will continue liable
upon any express covenants therein entered into by him in the assignment
to himself.
2. Where by the terms of a lease payments are to be made in monthly
installments, an action muy be brought to recover for more tiian one month,
and the plaintiff is not required to wait until the expiration of any partic-
ular year or time longer than a month before bringing suit.
[Opiniou filed June 9, 1891.]
454 Appellate Courts of Illinois.
VoT.. 39.] Consolidated Coal Co. of St. Louis v. Peers.
Appeal from the Circnit Conrt of Madison County; the
Hon. W. H. Snydek, Judge, presiding.
Mr. Chables W. Thomas, for appellant.
Messrs. John G. Irwin and Kbome & Hadlet, for appellee.
Phillips, P. J. On the 17th day of December, 1870,
appellees leased to the Abbey Coal & Mining Company for a
term of twenty-five years, certain lands, the lessee to pay a
royalty of three-eighths of a cent per bushel for all coal
mined with certain exceptions, and to guarantee a yearly roy-
alty of not less than $1,200 after the expiration of the first
twelve months, and if no coal should be mined the lessee
should pay monthly an installment of $100 on their guarantee
of $1,200 per year. These payments were to be considered
as royalty advanced, and the lessee was to have the right to
mine coal to the extent of the royalty paid, but the royalty
should not be less than $100 per month. On the 11th of
August, 1886, the Abbey Coal & Mining Company, by deed,
conveyed all its interest to the appellant, and by the terms of
that conveyance the appellant took the same subject to the
agreements in the lease mentioned to be performed by the
lessee therein. The appellant accepted the assignment thus
made and thereby became the tenant of appellees. On the
26th day of September, 1888, the appellees commenced their
action upon the guarantee in the lease, signed by the Abbey
Coal & Mining Company, and the assignment was made to the
appellant to recover the royalty guaranteed for the year
beginning September 17, 1887, and ending September 17,
1888. It was insisted, first, that as the lease was made on the
17th day of December, and being so described in the declara-
tion, that the year for which a recovery could be had must
be a year ending December 17th, and not ending September
17th. By the terms of the lease payments were to be
made in monthly installments. An action may be brought
to recover for more than one month, and the plain tiflE is
not required to wait until tlie expiration of any particular
Fourth District — February Term, 1890. 455
f * ■ ■ ■ ■
ft
Consolidated Coal Co. of St. Louis v. Peers.
year or time longer than .a month before bringing suit, and it
was not error to unite in the declaration a claim for more
than one month, and for a term of one jear from the time
of last payment It was next insisted by appellant that it
assigned all the interest it acquired in tlie lease to one Jacob
Lasurs, on the 11th day of Augnst, 1886, and that by that
assignment Lasurs acquired all the rights in the leasehold
ever acquired by the defendant, and that said assignment was
made on November 28, 1887, and the appellant requested the
court to hold the following proposition as law: "If the court
believes from the evidence that the defendant, in November
or December. 1887, by an instrument in writing, assigned and
transferred to one Jacob Lasurs all its right and title and
interest as assignee of the lessee in the lease in the declara-
tion mentioned, and set over to said I^asm^s its leasehold
estate under said lease, then the plaintiff can not recover in
this cause," which the court refused to hold. By the terms
of this agreement the Abbey Coal & Mining Company en-
tered into a covenant to pay monthly installments of $100 as
royalty at the rate of three-eigliths of a cent per bushel for
all coal mined, and by their covenant, if no coal should be
mined the lessee was to pay monthly installments of $100 per
month as an advanced royalty.
This covenarrt on the part of the Abbey Coal & Mining
Company is more than a mere acceptance of a lease of prem-
ises and imposes on it a duty other than the payment of rent.
It is a contract binding on it that it is not at liberty to disre-
gard of its own motion, and it can not discharge itself from
liability. By the terms of the deed made by the Abbey Coal
& Mining Company to the appellant, the Consolidated Coal
Company of St. Louis, the appellant accepteothe conveyance
of these premises so leased with other premises and took the
same subject to the agreements in the lease mentioned as
made by appellees to the Aobey Coal & M'ning Company,
which agreements were to be performed by appellant. By
the acceptance of that deed, appe'.-ant, by its covenants,
entered into the agreements to be done and r»erformed by the
Abbey Coal & Minmg Company, and became liaole to appel-
39 -1661
45 MO'
"39'45<J
52 5U7
4o6 Appellate Courts of Illinois.
Vol.. 39.] St. Loais Bridge Co. v. Fellows.
«
lees to the same extent as the Abbey Coal & Mining Com-
pany was liable, and by the terms of its covenants, conld not,
by an assignment of its interest to Lasars, discharge itself
from the obligations of the covenant so entered into. After
an assignment over, the assignee of a lease will continne
liable upon any express covenant entered into by him in the
assignment to liimself, and in this assignment the appellant^
by its acceptance of the deed of the Abbey Coal & Minin^^
Company, had entered into an express agreement to comply
with the terras of the lease from which it can not discharge
itself by an assignment over to Lasurs. It was not error to
refuse to hold the proposition as asked. The evidence wai^-
rants the verdict, and the assignment over not being a dis-
charge from liability of apiJellant, the judgment must be
affirmed.
Judgment affii^mecL
The St. Louis Bridge Co. et al.
Sarah E. Fellows, Administratrix.
Baih'oads — Bridge Company — Personal Injuries — Defective Traeh-^
Evidence — Special Findings,
In an action to recover from a bridge company damaffe» for the death of
one of its employes, wherein the jury specially found that the accident
occurred throujfh the ne((ligent conRtruction of its tracks), this court holds
that the special findings were not warranted by the evidence, and that the
verdict for the plaintiff bused thereon, should not be allowed to stand.
[Opinion filed June 9, 1891.]
Appeal from the City Court of East St Louis, Illinois;
the Hon. B. H. Can by, Judge, presiding.
Messrs. G. & G. A. Kokrner, for appellants.
Inasmuch as the mere happening of an accident is not prima
Fourth District — August Term, 1890. 457
-^' —
St. Louis Bridge Co. ▼. Fellows.
facie evidence of neglect of employer (Braith v. M. & L. K.
R Co., 18 Fed. Kep. 304) we contend tliat under tlie evidence
the court should have given the following instruction as asked
by appellants:
" The court instructs the jury that the plaintiflf has failed
to sustain by evidence the material facts charged in the dec-
laration and that the verdict must bo for defendant."
Where the whole evidence is so insufficient that it can not
. sustain a verdict, it is the duty of the court, as a matter of
law, to find for the defendant. Simmons v. C. & Tomah K.
R Co., 110 111. 346; L. S. & M. S. K^. Co. v. O'Connor, 115
ill. 261; Bartellot v. International Bank, 119 111. 271.
An employe can not recover for an injury resulting from
one of the usual risks or hazards connected with the business
into which he has entered, and which the law will consider
that he has assumed when undertaking the duties of the
position. I. B. & W. R R Co. v. Flannigen, 77 111. 365; L.
R & F. S. V. Duffey, 4 Am. and Eng. R R Cases, 637.
A master's liability for injuries to his employe from de-
fective arrangements is not that of an insurer or guarantor,
if the defect was apparent to ordinary observation. It is a
question of reasonable care and diligence. Batterson v. C. ife
G. T. Ry. Co., 49 Mich. 184; 8 American and English R R
Cases, 123.
Under the evidence there can be no doubt that the appel-
lant used not only reasonable care and diligence in providing
against a defect capable of causing an accident, but used extra-
ordinary care to provide the best possible appliances.
A master is liable for injuries to a servant only when he
knows of the defect causing the accident, or when by the
exercise of reasonable care and diligence, he ought to have
known. T. P. & W. R R Co. v. Conroy, 61 III. 162; T. W.
& W. R R Co. V. Ingraham, 77 111. 309; C. & H. R R Co.
V. Piatt, 89 III. 141.
The fact that that part of the track where the accident
occurred had been in use for a long time prior to the accident,
and that no other mishap had ever occurred at the same place,
that it was nsed immediately after the accident, that it had
458 Appellate Courts of Illinois.
Vol. 39.] St. Louis Brid^je Co. v. Fellows.
frequently been inspected and declared all right, and that uo
one is able to account for the accident, makes it necessary to
consider the accident that caused the deatli of Fellows one of
the risks or hazards incident to his employment.
The jury, by their special verdict, find that the death of
Fellows was caused by the negligence of the track inspector,
and as a switchman and track inspector are co-employes, the
refusal of the following instruction was error:
^' Even if it should appear from the evidence that the track
was out of re})air, owing to the negligence of the track fore-
man or road master, or any person charged with an exami-
nation of the track, employed by the company, the defendant
can not recover, the switchman and the track inspector
employed in the same yard being co-employes."
All who engage in accomplishing the ultimate purpose in
view, that is, running of the road, must be regarded as engaged
in the same general business, within the meaning of the rule,
Hurd V. V. & C. E. R. Co., 32 Vt. 473.
Those who are engaged in the service of the same master
in carrying on and conducting the same general business in
which the usual instrumentalities are used, may justly be called
fellow-servants.
A proper test of this relation is whether the negligence of
the one is likely to inflict injury on the other. Valtez v. O.
& M. R. E. Co., 85 III. 500.
Messrs. W. P. Launtz and Jesse M. Freels, for appellee.
Sweeney, their track foreman, on cross-examination, says
^* he constructed this track " about two years before, and that
he- "did not give the outside rail any elevation," and that no
double or second rail was placed there to take the place of
elevation on this curve. This track was dangerously defective
in its construction, and the defendants had notice of these
defects in their track, which were defects in construction, two
years before the time of the injury, and were guilty of gross
negligence in failing to remove them and make tlie track
safe; and appellant, having thus negligently failed to take
any stops to make its track safe, is liable for this injury
Fourth District — August Term, 1890. 439
■*
St Louis Bridge Co. v. Fellows.
_ _ _ •
caused by its negligence. C, B. & Q. R. R Co. v. Gregory,
58 111. 273; Whalen v. I. & St. L. R. R. & Coal Co., 10 111.
A pp. 324; C. & 1. R. R. Co. v. Russell, 91 HI. 298; III. Cent.
R. R. Co. V. Welch, 52 El. 183; C. & A. R, R. Co. v. John-
son, 116 HI. 206; T. P. & W. Ry. Co. v. Conroy, 68 111. 561;
North. Pacific R. R. Co. v. Herbert, 116 U. S. 647; Chicago
& N. W. Ry. Co. V. Swett, 45 111. 201,
In the Swett case, supra^ onr Supreme Conrt say : " It is
well settled the employer corporation is bound to furnish to
their servants safe materials and structures. Such an obliga-
tion is permanent, and can not be avoided by the delegation
of the power or authority to any other, or number of persons;
for the undertaking with their servants is direct, that they
will furnish suitable and safe materials and structures, and
properly skilled and careful persons to assist in running the
trains, * * * and most especially that they shall, in the
first instance, properly construct their road with all its neces-
sary appurtenances."
The duty of building this track on this fourteen degree
curve with an elevation on the outside rail, and with a second
rail on the inside of the inside rail on said curve, in order to
make it a safe track for the purposes for which it was used,
was a duty imposed by law, as alleged in the declaration, upon
the defendants, and the failure on their part to thus construct
said track was an '' omission and a failure of duty in construc-
tion, for which they are liable to the plaintiflE." Chicago &
C. T. R. R Co. V. Hines, 23 N, E. Rc^p. 1022.
But in addition to this notice of these patent defects in con-
struction, which the defendants were in law bound to know
and take notice of, they had actual notice of the dangerous
condition of their track at this curve, by having had other
engines and cars run off there before this injury.
And appellant was also guilty of negligence in failing to
exercise ordinary care in the selection of the servants in
charge of its tracks. An examination of the evidence of
Sweeney, the track foreman, and of Comer, his assistant, will
show that they were wholly incompetent for tlie responsible
positions they held, and that appellant knew this, or by the
4G0 Appellate Courts op Illinois.
■' ■ ■ ■ »
Vol. 39.] St. Louis Bridgre Co. v. Fellows.
exercise of ordinary care might have known it, long before
the injnry.
The learned counsel for appellant assign for error the giv-
ing by the court of the instruction asked by appellee, but have
failed to urge or discuss this assignment in their argument,
and, as they have abandoned this assignment, we will not
trouble the court with an extended consideration of it, but
will content ourselves by saying that said instruction was
properly given; that it presented the case fairly and fully,
under the law and the evidence, to the jury, and that it is
sustained by the law as expressed in Whalen v. I. & St. L. R.
R & Coal Co., 16 HI. App. 323; III. Cent. R R Co. v. Welch,
62 111. 186; C. & I. R R Co. v. Russell, 91 III. 303; T. P. &
W. Ry. Co. V. Conroy, 68 III. 561; U. S. Rolling Stock Co.
V. Wilder, 116 111. 109, and other cases.
Green, J. The case was before us on appeal at the August
term, A. D. 1889, and is reported in 31 111. App. 282. The
jury (as shown by that record) then, in answer to the ques-
tion, " What officer, agent or employe, or servant of one of
the defendants, was guilty of negligence, resulting in the
death of Fellows?" said, by their special finding, " The officer
' in charge of said track repairing ;^^ and, in answer to the ques-
tion, " In what did the negligence of such oflScer, agent or
employe consist?" said, by their special finding, " In ya^7^ny
to keep said track in proper condition,^^ We reversed the
judgment and said in the opinion: "We find no evidence
establishing the charge that the track and road bed at place of
accident was not properly constructed;" and further said,
•' We discover no evidence in this record justifying the ver-
dict." In the present record it appears the jury specially
found that the negligence of the defendants, resulting in the
death of Fellows, was in rwt properly constructifig the tracks
in question^ in the ordinary and icsual manner^ according to
the methods iisually adopted for such construction. Upon
these special findings the general verdict is based, and can only
bo sustained on the ground that the evidence justified such
special findings. The appellee, at the trial, Introduced as ex-
Fourth District — August Term, 1890. 461
St. Louis Bridge Co. v. Fellows.
perts upon the question of construction, Weber, Locke and
Bisdora. Weber, a surveyor and civil engineer, after he had
testified what elevations of the outside road, at a curve, should
be given, according to the rules for building tracks at curves
laid down in the books for engineers, further testified that the
elevation of the track in the switching yards would be impos-
sible; that what he had said about elevations at curves applied
to the main track on the road; that the reason it would be
impossible to construct in that way in the yards, was, that the
different elevations would interfere with the crossings of
switches. This witness, in reply to the cross-interrogatory,
" Consequently, when you look upon these as a construction
of switch tracks in yards, they are properly constfi-ucted, are
they not?" testified: " I think so." Locke, who was in real
estate business, and a civil engineer by profession, testified the
rule was, in a track having a curve of thirteen or fourteen de-
grees, to elevate the outside rail a good deal higher than the in-
side rail; did not remember just what it should be; that it had
been a good while since he had had anything to do with that.
And in answer to the question, '* Is a track with a fourteen de-
gree curve proparly constructed flat?" said, "No, sir, I think
not" On cross-examination he testified he did not know any-
thing about the yards of defendants, and had never been in
them. That he was not very much familiar with the con-
struction of said road tracks in switch yards. That he had
constructed yards a good while ago. That the rule he
referred to in regard to tracks, is where the train is supposed
to have an unimpeded rnn; there an elevation is proper. That
he thought it would be practicable to have a slight elevation;
not so great an elevation in yards of this character. That he
had never examined the yards in question at all, and had not
paid any attention to the switch yards of any other railroads.
Bisdom, a civil engineer in the railroad business, testified:
" There is a rule in engineering that the outside rail should bo
higher than the inside rail, on a curve, according to the speed
of the train going over it On a curve of thirteen or four-
teen degrees, when a train is going ten or fifteen miles an
hoar, the elevation should be an inch to an inch and a quarter/'
462 Appellate Courts of Illinois.
Vol. 39.] St. Louis Bridge Co. v. Fellows.
—
In answer to the question, "Then a track with a thirteen or
fourteen degree curve — is that properly constructed level ?"
witness said, "you must understand me. I am talking now
about a straight track." He was then asked "and when you
come to a curve?" and replied, "and there you come to a curve
in the track." He was next asked, " You say, then, that a
track with a thirteen or fourteen degree curve would not be
properly constructed unless the outside rail was raised in
accordance with what you have stated?" andansweredj "Yes,
sir." The cross-examination of this witness confirms the
inference we draw from his testimony in chief, that the ele-
vation of the outside rail is proper at a curve on the main
track but not in yards like those in question here. Taking all
this expert testimony together and giving it a construction as
favorable to plaintiff's theory as we think it entitled to, and
it fails to justify the finding of the jury that the track and
switch in question were not properly constructed.
Supplementary to this expert testimony, and for the pur-
pose of proving that the track in question was improperly
constructed, plaintiff introduced and examined several wit-
nesses. May testified : " Had done track work and switching;
was not a track builder, worked at it. As a general rule tho
outside rail is elevated on a fourteen degree cui've. So
far as the degree of curve is concerned, I don't know anything
about degrees. It has been some time since I worked at it.
As a rule the outside rail is elevated on a curve. It is con-
sidered safe to have it elevated." To the question " Is it
considered unsafe when it is not elevated ? " he replied,
"Well, yes, I know it cuts tlie rail wben it is not elevated.
It is liable to climb the rail ; the car run off the track."
To the question, " Is it considered unsafe, Mr. May, to so
construct a track that the engine will run off?" he replied,
" They usually build them so that they won't run off; that is
what they are built for." On cross-examination this witness
testified he was not acquainted with the bridge yards; did not
know when the accident happened; and in answer to the
question, " Do you know whether those tracks, leads and
switches are properly constructed for the purposes for which
Fourth District — August Term, 1<S90. 463
St. Louis Bridge Co. y. Fellown.
they are used or not?" testified, "No, sir; I don't know any-
thing about it." Warren, a switcliman, testified a track with
a fourteen degi'ee curve is not properly constructed flat. To
liave it safe according to the rule it should have an elevation
in the outside rail; that is to prevent the engine from leaving
the track. When the outside rail is not on an elevation tlie
simple thing is the engine goes oflE the track. It might go
over a dozen times and the thirteenth time it would go off
and kill everybody.- On cross-examination, after he had tes-
tified that ij; would be practicable to build the track on a curve
in the yards with the outside rail elevated, he testified, "You
can not split the switches, but after it leaves the main track it
can be elevated, after it leaves the frog;" and was then asked,
" But just at tha place it loaves the frog can there be an
elevation?" answered, "There can, yes sir, by raising the rail
with the plates;" and was then asked, "Is that the usual
and practicable construction ?" replied, " Well, I could not say
that that is the usual and proper construction. I am not well
enough posted in track work to say that; " and on re-examina-
tion testifixjd he knew what was necessary to make a safe
track. That unless they elevate the rail an engine going
around is very likely to get off the track; that imless.a track
is elevated and has a guard-rail it is not safe. Hakes, the
same witness whose testimonj' we commented on in the former
opinion, testified again, and it is unnecessary to add anything
to what we there said; it is applicable to his testimony in this
record. Reynolds, switchman, testified he knew where these
tracks and grounds were, and was asked, " I will ask you
whether this track with a thirteen degree curve is properly
constructed flat then?" he answered, "Well, yes sir;" and
was next asked, " You say it is properly constructed flat ? " and
answered, " Well, I don't know anything about that;" and was
next asked, " You did not understand my question. I asked
you if a track with a fourteen degree curve is properly con-
structed flat; if the outside rail is not elevated?" and then
answered, " Well, if it is not elevated why of course it is not
constructed properly;" and then testified he did not think it
would be safe unless it was elevated. On cross-examination,
464 Appellate Courts of Illinois.
. t-i .
Vol. 39.] St. Louis Bridge Co. v. Fellows.
being asked (after stating he knew where accident happened)
if he considered the track tliere properly constmcted,
answered: "Well, I am track man myself ;" then said he had
worked there over tliose tracks, and the same question was
then again asked him and he replied, " Well, I will tell yon;
at the time this happened I was working for the Bridge &
Tunnel Co. np until 1886. I quit there in 1886 and was not
working at the Bridge & Tunnel until 1888."
He then testified " these tracks were then there. So far as
their condition was copcerned we had no trouble, only in 188*^
a car got off the track. Since I was there this switch has been
used all the time, day and night. As far as the elevation of
the track is concerned, I am no track man, don't know
what it ought to be; it ought to have a little elevation;"
and was asked, "Where there are so mmy switches and
frogs, is it proper construction to have the outside rail
elevated? is it not dangerous?" replied, " I don't know any-
thing about that." Bucklew, train dispatcher, said to a certain
extent he was familiar with the construction of railroads; not
about East St. Louis; should judge a track with a thirteen
degree curve is not properly constructed flat; should say a
curve should have a guard-rail, or be elevated more or less;
the elevation would depend on whether the curve is short or
long. The outside rail is elevated to keep the engine from
running off in turning the curve." On cross-examination
admitted he had no personal knowledge of building railroads
and was not prepared to answer the question as to whether
the track at the place of the accident was properly constructed
or not; never examined that place and did not know whether
the track was properly constructed or not. Sweeney, track
foreman for defendant, testified that deceased was employed
as switchman for defendant for five or six months preceding
his death; that, in the opinion of witness, no elevation of outside
rail was needed on a switch like the one in question. Can
determine by looking at track that it is in good condition;
looked at track after the accident; it was all right. " I saw
the track was all right. Outside rail did not need any eleva-
tion; was there probably twenty minutes or half an hour after
Fourth District — August Term, 1890. 465
St. Louis Bridge Co. v. Fellows.
accident; engine then oflf the track; in constructing tracks we
useagange. We tested track with gauge where engine went
ofiE ; found the track was all right. Had not put in any rail
there the day before; did not change the guard-rail there the
day before or the same morning; John Conner is my assistant;
he is a track walker. If he sees defects in track his duty is
to report to me; to tighten bolts and see that things in
general are all right. "When I give him orders he puts down
rails and changes guard-rails. When the engine was put
back on track tliey tiied to move the engine over the same
track and it struck the guard-rail; did not tuni off; did
not remount the rail; don't know why it did not go ahead
with it. The damage done to track was repaired; just
leveled up the place again. The guard-rail was there until
the track was moved, three to six months ago. The
same guard rail is there yet in that track. Could not say
why they backed the engine off, and through some other
track. Was around there until engine was put on track,
backed out of the switch and run down on another track. I
believe I saw that place day before the accident; would not
say positively." On cross-examination, this witness testified:
" These tracks are in the defendantb' yards. It is a good yard;
there are no better switches and no better yards in the
United States, and none better taken care of; saw the place
where the engine got off the day before, or day before
that. It was in good condition; and after the accident it
was in the same condition, and the same switch was used.
The same switch and rails are used there yet. I can show
the same guard-rail down there yet. Have had twenty-two
years' experience in the laying of railroad tracks; seven years
with defendant company. At the point where accident oc-
curred 1 could perceive nothing that would cause it. The
switch is built on the same principle as all other switches.
Kobert P. Taussig was the engineer in charge of the construc-
tion of the tracks. Watts, switchman in employ of defendant,
saw place of accident about twenty minutes after it hap-
pened; engine was off the track; was not there more than
Vou XXXIX 30
466 Appellate Courts op Illinois.
Vol. 89.] St. Louis Bridpre Co. v. Fellows.
ten or fifteen minutes; made no examination of the track;
suppose there is a cause for an engine nmning off the track;
frequently yon can not see the cause." On cross-examination
he testified : " We are switching over the same place where
accident occurred every day." The testimony of Bennett, the
same witness who testified at the former trial, was the same
as theirs, and what we said in former opinion about it appHes
now. John Conner, a track walker in defendant's employ,
described his duties. Was at place of accident about an hour
after it happened. It was all right as far as he could see and
judge; engine was off the track; nothing was done to tlie
rails so far as he could see; there was a gnard-rail tliere;
"I did not put it down; could not teTl who put it down;
could not tell when it was put down, but guess it was put
down when the track was laid." On cross-examination witness
testified he liad been employed as track walker in these yards
for two years before the accident. Saw this switch and
guard-rail at the place deceased was hurt once a day, and
sometimes twice. It was in general use all this time. Sheers,
assistant yard master of defendant, testified he rode over the
track at place of accident every day in 1886. Could not say
anything about elevation of rails at curves; the outer rail is
provided with guard-rail. On cross-examination testified he
had been acquainted with these yards where this accident
occurred for eight or nine years; passed along there every
day on an engine. This switch was in use all the time since
it was built. It was in good order. It was used afterwai-d
on the day of accident; kept right on working. On re-ex-
amination said he did not inspect that track; passed over that
switch three or four times before the accident that morning.
Kensall, switchman in employ of defendant, was at place of
accident not long after it occurred. "Was sent to help put
engine on track; did not see engine jump off ; helped put
it on; best recollection is that engine started to run off
again and then dropped down. On cross-examination testi-
fied he had passed over that switch often; as far as he could
see it was all right; did not examine it closely; it was like
any other switch; had not noticed it that morning; did
Fourth Jjistrict — August Term, lot/u. 467
St. Louis Bridge Co. v. Fellows.
not know whether it was all right when that engine ran over
it. Diinlap, agent for defendant, was at place of accident;
got there and engine was moved about forty feet back, and
when they moved it forward it started to mount ihe guard-
rail. This was near the place it had run oflf. The engine
was injured in running ofiE the track and from the contact
with other cars.
On cross-examination testified the general condition of that
yard is better«and the tracks in as good condition as any yard
he ever saw. That same switch was in constant use ever
since and on same day of accident. Hardway, engineer run-
ning the engine at time of accident, testified that the engine
was going from one track to another at from six to about
eight miles an hour, and when the engine got to the guard-
rail it jumped the track and went cross- ways into cars standing
there, about from eight to fifteen feet. It happened very
suddenly. Where the accident occurred there is not a very
sliarp curve, but a slight curve. After engine got back on
track started forward again and it started to mount the
guard-rails at same place. Then we backed out and went up
another track. I went by signals and presume we did not go
up the same track, because 'the engine would not go over
there. We then ran the engine to the shop, across the
bridge. If that track had been all right I suppose the engine
would have run over it Could not say, that was my first
trip over that track that day. Tliat was the first day I had
worked in that yard for a good while; had been working
flights. On cross-examination, testified he could not account
for the accident; did not know whether track was in order
or not; supposed if track was in order engine would have
gone over all right; passed over same place while working
there nights; nothing had ever happened there before. An
engine is liable to jump the track and they claim they can
not tell whether there is anything the matter with the track
or not. Lots of times they jump the track and the cause is
not known, but it seems there ought to be some cause or they
would not jump. Had worked in that yard since that time;
worked down there several times. Berg, the fireman on
468 Appellate Courts op Illinois.
Vol. '^^,] St. Louis Bridpre Co. v. Fellows.
same engine, testified he was on front end of engine when
accident occnrred. "After the accident the engine was pulled
back on tlie track; did not notice whether engine mounted
tlie gnard-rail after they started it forward; suppose thej
backed her out. "We wore going about five or six miles an
hour. There must bo a cause for engine leaving the track,
but wliat cause I do not know. Have run on tliat track lots
of times since that accident. If the track is in good order
and the engine is all right, and an engine jumps the track
]:unning at that speed, tliere mast be something to cause it,
whatever it is I do not know. To the best of mj knowledge
the track there is a flat track." Wilson's deposition, the same
as on former trial, was read, and we desire to add nothing to
what was said concerning his testimony in the former opinion.
Baily's testimony related only to the duties of switchmen.
The evidence of Sweeney on former trial upon cross-examina-
tion by plaintiff was next read. He testified he built switch
in question; did not give outside rail any elevation; did
not have a rail on the inside of outside rail; track was built
there about two years before the accident. Don't know
where engine got olf the track. Was there shortly after
accident occurred; saw engine off the track. Can't tell when
repairs were njade there before accident. Know no repairs
were made there the day before. "Conner did not make
repairs or put down rails except by my instructions. If he
made any repairs at this place I don't know anything about
it." The foregoing witnesses were aW that testified in behalf
of plaintiff; and while we have not reproduced all their testi-
mony, we have stated all that seemed material upon the
question of the construction of the track and switch at place
where the engine was derailed. And this evidence, including
the testimony of these experts examined on behalf of plaintiff,
falls far short of proving the facts found by the jury, viz.:
That the negligence of defendants resulting in the death of
Fellows consisted in not properly conMructing the tracks in
question in the ordinary and usval manner^ according to the
meiJwds usually adopted for such consir^iction. But in
addition to this, the testimony of three experts testify-
. Fourth District — August Term, 1890. 469
St. Louis Bridge Co. v. Fellows.
ing on behalf of defendants, further negative that special
finding. Taussig, the civil engineer who laid out and con-
structed the track and switch in question, Sharinan, a civil
engineer engaged in civil engineering on railroads, Eayre, a
civil engineer of large experience in this kind of work, all
concur in the opinion, and so testify, that these tracks were
constructed in a safe and proper manner, and in accordance
with the most approved methods. Moreover it appears in
evidence that for a long time before this accident and ever
since, engines and trains have been continuously operated over
this track and switch day and night; that no change of con-
struction has been made, and no complaint or remonstrance
appears to have been made by the employes engaged in run-
ning and operating such trains. It seems incredible that they
would incur -the extra hazard which would be imposed upon
them if this structure was unsafe or defective for so long a
time without objection, or that defendant corporations would
permit such track and switch to be so used, if dangerous or
improperly constructed. In view of all the facts and circum-
stances proven, we are compelled to hold that the special
findings were not warranted by the evidence, and the general
verdict based thereon should have been set aside and a new
trial awarded. The other questions to M'hieh our attention
has been invited by counsel for appellant, we deem it
unnecessary to diecuss, inasmuch as we find the evidence insuf-
ficient to justify the special finding and verdict of the jury.
The judgment is reversed and cause remanded.
JReversed and* remanded.
470 Appellate Courts of Illinois.
Vol. 39.] Baer v. Enewitz.
39 i;o|
«i 203
Aaeon Baeb, Impleaded, etc.,
V.
Henry Knewitz.
Morfffages — Foreclosure — Sale Subsequent^ to Mortgage — Assumption
qf Incumbrance — Decree Pro Confesso.
Upon bills filed to foreclose mort Adages, the 'fact beicfj^ that subsequent to
the giying thereof, the property in question was sold to another, it beings
alleged (hat the grantee assumed the same, this court holds, there beiuif
no allegation in complainant's bill that the grantee ever accepted the
deed from the grantor, that the recital in said deed is not the
promise of the grantee; that in the absence of an averment of assent said
recital is not sufficient, standing alone, to create a liability against him, and
that the averments of the bill are not sufficient, on a default, to authorize
a decree pro confesso against said grantee for a personal liability for the
debt of the grantor.
[Opinion filed February 26, 1891.]
In error to the' Circuit Court of St Clair County; tlio
Hon. George W. Wall, Judge, presiding.
A bill to foreclose a mortgage made by Conrad Benner and
Elizabeth Benner to secure certaip notes, was tiled in the St.
Clair Circuit Court by John Seibert, and on the same day a
bill was filed to foreclose a mortgage made by the Benners to
Henry Knewitz in wliich defendant in error was complainant.
These causes were consolidated at the May term, 1889, of
said court and a decree entered. No question arises on tlie
bill of Seibert under the assignment of errors. The bill of
defendant in error avers the execution of notes and mortgage
to Knewitz by Conrad Benner and default in payment. The
bill then contains this averment :
" And complainant further shows that he is informed and
believes that Aaron Baer and Louis Bartel have, or claim to
have, some interests in the mortgaged premises as purchasers,
mortgagees, judgment creditors or otherwise, which interests,
if any there be, have accrued subsequently to the lien of said
mortgage deed and are subject thereto, and that John Seibert
Fourth District — August Term, 1890. 471
Baer v. Knewitz.
has a prior mortgage on said land. Complainant further '
shows that on the 5th day of June, 1886, by their deed of
that date, said Conrad Benner and Elizabeth Benner conveyed
and warranted to said Aaron Baer the real estate herein above
described, subject to the mortgage of John Seibert for $3,000,
and subject also to the above mortgage of complainant. Both
of which mortgages the said Aaron Baer in and by said deed
assumed to pay as part of the consideration."
The bill makes a copy of the deed an exhibit in the case.
The deed so made an exhibit to the bill is in the statutory
form and in addition contains this clause: ^^ Subject, however,
to two mortgages, one for $3,000, made to said Baer and by
him assigned to John Seibert, and the other for $2,000, made
to Henry Knewitz, both of which said Baer assumes to pay
as part of said consideration." That deed purports to be
made by Conrad Benner and Elizabeth Benner to Aaron
Baer. A default was entered to the two bills and the cause
referred for computation, and the report of the master siiows
the amount due on each mortgage and a decree ^rc? confesso*
The following finding was entered : " The court further finds,
that on the 5th day of June, A. D. 1886, by their warranty
deed of that date, said Conrad Benner and Elizabeth Benner
conveyed and warranted to said Aaron Baer the said real
estate herein above described, subject to said two mortgages
herein described, the one held by John Seibert and the other
held by Henry Knewitz; both of which mortgages the said
defendant, Aaron Baer, in and by said deed assumed to pay
as part of the consideration expressed in said deed, which deed
is duly recorded in the recorder's office of said county of St.
Clair, in book 183, p. 263." It is then among other things
decreed by the court, "that said master specify the amount
of such deficiency after deducting the costs and expenses of
said sale, and that on the comuig in and confirmation of said
report, the defendant, Aaron Baer, who is personaTly liable
for the debts secured by the mortgage by the amount of such
deficiency," etc. On sale being made and on the coming in of
said report and its confirmation the following order was
entered at the September term, 1886, of said court.
472 Appellate Courts of iLLiyoig.
Vol. 39.] Baer v. Knewitz.
It 18 tlierefore ordered bj the court that said complaiu-
ant, Henry Knewitz, have personal judgment a^inst said
Aaron Baer for said deficiency in the sum of $671.95,
,witli interest thereon from the 17th day of August, 18S9
(the day of sale), and that he have execution for the collection
thereof, as provided for in the decree of this case rendered
at a prior term of this court Thereupon the defendant,
Aaron Baer, sued out this writ of error and assigns error.
First. The Circuit Court erred in rendering a decree against
Aaron Baer for the payment of $671.95, without any liability
alleged in the bill of said Knewitz.
Second. Tlie Circuit Court erred in rendering a personal
decree against Aaron Baer, when the allegations in the Kne-
witz bill do not set forth a pei-sonal liability for the mortgage
debt, wherefore plain tiiBf in error prays that the decree
entered at the September term, 1889, be reversed, etc.
Mr. William Winkelmann, for plaintiflE in eiTor, Aaron
Baer.
Mr. Chables P. Knispel, for defendant in error.
Phillips, P. J. There is no allegation in this bill that
Aaron Baer ever accepted the deed from Conrad Bonner and
Elizabeth Benner. The recital in the deed is not the promise
of Baer, the grantee; and unless his assent is averred that
recital is not suflScient, standing alone, to create a liability
against him. The averments of the bill are not sufficient on
a default to authorize a decree, pro cofifesso, against the
plaintiff in error for a personal liability for the debt of Con-
rad Benner. Thompson v. Dearborn et al., 107 111. 87. The
court erred in rendering a decree for the payment of $671.95.
That decree of the September term, 1889, awarding execu-
tion, is reversed and the cause remanded.
Meversed and remanded.
OASES
DC THS
APPELLATE COURTS OF ILLINOIS.
Third District — November Term, 1888.
Ohio, Indiana & Western Railway Company
V.
The People of the State of Illinois, for Use,
etc.
Railroads — ObstrucHons of Streets — Standing Cars — Municipal Ordi-
nance—Sees. 77 and 18, Chap. 114, H, 5.
1. The term highway includes all kinds of public ways, and aa used in
Sees. 77 and 78 of the Railroad and Warehouse Act would include a street in
a city and should be so applied, unless it is apparent that by some other legis-
hitive provision the exclusive control and jurisdiction over, and the right
to prevent obstructions to, such street has been vested in the local munic-
ipality.
2. In certain cases the same act may be an offense against the State and
against a municipality, and may be punished by both.
[Opinion filed February 2, 1880.]
Appbal from the Circuit Court of McLean County; the
Hon. A. Sample, Judge, presiding.
Messrs. C. "W. Faiebanks and Fkank Y. Hamilton, for
appellant.
Mr. John Staplbton, for appellee.
(473)
474 Appellate Courts of Illinois.
Vol. 39.1 0., I. & W. Ry. Co. v. The People.
"Wall, P. J. This case was tried by the Circait Court
upon appeal from a justice of the peace, a jury being waived,
on the following stipulation or agreed state of facts, viz.:
''That this suit was commenced on tlie 31st day of March,
1888, in the name of the people of the State of Illinois, for
the use of Henry C. Dickerson against the said defendant, for
alleged obstructions of streets in the city of Le Hoy, in said
county iand State; that the street running north and south
immediately west of the depot of defendant in said city of
Le Roy was blockaded by cars being permitted to remain on
the side track of defendant from on or about March 26,
1888; that said street so obstructed is within the corporate
limits of the city of Le Eoy as aforesaid; that said city of
Le Hoy is an incorporated city, and that it has passed a valid
ordinance providing for the care» control and management of
the streets and alleys within the corporate limits of said city,
and also providing a penalty for obstructing the streets of
said city."
The court found defendant guilty and assessed a fine of $10,
from which judgment an appeal is prosecuted to this court
The proceeding is based upon Sees. 77 and 78, of Chap.
114, K. S., in reference to railroads and warehouses, whereby
it is provided that railroad corporations shall not obstnict
public highways by trains or cars except to receive or dis-
charge passengers, or to take fuel or water, and in no case
longer than ten minutes, and that for each offense such cor-
poration shall forfeit the sum of not less than ten, nor more
than $100, to be recovered in an action of debt in the name
of the people, etc., for the use of any person who may sue.
It is urged on behalf of the appellant that the term public
highway as here used does not include a street in a city where
the municipal corporation has, by ordinance, nndertaken, in
pursuance of its corporate authority, to regulate and prevent
such obstruction of its streets.
A highway is defined to be a passage road or street which
every citizen has a right to use, 1 Boiiv. Law Die. 586, and a
street is a public highway or thoroughfare in a city or village.
2 lb. 551.
Third District — November Term, 1888. 475
0., I. & W. Ry. Co. V. The People.
The term highway is generic and includes all kinds of pub-
lic ways, and as used in Sees. 77 and 78 of the Eailroad and
Warehouse Act, would, of course, include a street in a city
and should be so applied, unless it is apparent that by some
other legislative provision the exclusive control and jurisdic-
tion over, and the right to prevent obstructions to such streets,
has been vested in the local municipality. So far as granting
the right of way is concerned, as the fee of the street is in the
city, there is no doubt its authority is complete, but the ques-
tion is whether the exclusive power to enforce this police
regulation has been remitted by the State to its local agency,
the city.
Admitting, as argued, that the city of Le Roy is incorpo-
rated under the general law, its power over the subject rests
upon clauses 9, 10, 25 and 27, par. 63, Chap. 24, B. S. The
ninth clause confers power to regulate the use of streets; the
tenth, to prevent and remove obstructions to the same; the
twenty-fifth, to provide for and change the location, grade
and crossings of any railroad, and the twenty-seventh, to
require railroads to keep flagmen at railroad crossings of
streets, and provide protection against injury to persons and
property in the use of such railroads, and with reference to the
grade of railroad tracks and the keeping open of drains, etc.,
under and along the same. We have been referred to no
other provisions as to this point, and assume there is nothing
else.
The ninth and tenth clauses are, perhaps, broad enough to
invest the city with power to pass such an ordinance as in
the argument is referi'ed to. The stipulation upon which the
case was tried does not state the provisions of the ordinance,
and it can not be determined therefrom whether it applies to
railroads or not.
It seems clear, however, that there is in these clauses no
abdication of power by the State, no surrender or remission
to the local. municipality. Such an abdication or remission or
surrender might, we make no doubt, be inferred from any
language plainly investing the city with exclusive authority
in the premises. At most, we think it can be said only that,
476 Appellate Courts of Illinois.
Vol. 39.] Anderson v. Tbiele.
while the State has fixed a penalty for the offense deBcribed,
it has given the city power to legislate generally upon tlie
subject of preventing and removing obstructions to streets
and the use of streets.
It is familiar doctrine that the same act may be an offense
against the State and against the city and may be punislied by
both. In Cooley on Constitutional Limitations, it is said, 199 :
''Nor will conferring a power upon a corporation to pass by-
laws and impose penalties for the regulation of any specified
subject necessarily supersede the State law on the same sub-
ject, but the State law and the by-law may both stand together
if not inconsistent. Indeed, an act may be a penal offense
imder the laws of the State, and furth er penalties under proper
legislative authority be imposed for its commission by munic-
ipal by-laws, and the enforcement of the one would not pre-
clude the other."
The same view has been announced in Wragg v. Penn
Township, 94 III. 11, where will be found an exhaustive consid-
eration of the subject, including former decisions in this State.
We are of opinion there was no error in this judgmen-t and
it will, therefore, be affirmed.
Judgment affirmed.
Robert A. Anderson and Robert P. Allek
V.
William Thiele, .Sr.
Rea I Property — Drainage — Em hankment — Evidence — InstructionB,
In an action brought to recover for injury to farm land through the
building of an embankment, whereby its drainage was obstructed, this
court declines, in view of the evidence, to interfere with the verdict for^the
plaintiff.
«
[Opinion filed January 24, 1891.]
Appeal from the Circuit Court of Pike County; the Hon.
C. J. ScoFiKLD, Judge, presiding.
Third District — November Term, 1890. 477
Anderson v. Thiele.
Messrs. Orb & Cbawford and Edward Ya.tks, for appel-
lants.
Messrs. W. E. "Williams and A. Beavbks, for appellee.
Wall, J. Appellee recovered a judgment for $195 against
appellants in an action on the case. The ground of complaint
was that the appellants had erected a levee or embankment
along the line, dividing their land from that of the appellee,
whereby the natural course of drainage was obstructed and the
land of appellee was injured, crops were damaged, etc. The
defense was that the appellee had made an artificial ditch oi
water-course on his land whereby water in greatly increased
quantity was thrown upon the land of appellants and that to
to protect themselves against such increase they built the
earthwork in question. The appellee contended that he was
not responsible for the so-called artificial ditch or water-
course, because it was the result of natural causes and that the
obstruction complained of not only affected the flow in said
channel, but prevented the passage of water in a diflFused state
over a wide stretch of land (having no connection with said
channel) where, from the natural condition of the surface, the
flow was from the premises of appellee to and upon the prem-
ises of appellants.
CJpon these contentions the evidence was somewhat in con-
flict, but the jury were fully justified in finding the issues for
the plaintiff. The damages allowed are not excessive. The
chief objection urged by appellants is as to the action of the
court in giving the first, second, fifth, sixth and seventh
instructions asked by the plaintiff. We think there was no
error in this respect. As to the first, second and fifth, the
main criticism is that they are misleading and that they ignore
the theory of the defense; but it is apparent, when they
are read along with the other instructions given at the
instance of the plaintiff and those given for the defendants,
that there is nothing substantial in this complaint. The sixth
instruction announces a correct legal proposition as to the
effect and competency of certain declarations of a witness not
a party to the suit.
478 Appellate Courts of Illinois.
Vol. 39.J Tobin v. Collier.
It is insisted also that the court erred in refusing a number
of instructions asked by defendants, but the specific ground uf
this objection is not pointed out. We find on examination
that the court did give a large number of instructions
asked by defendants, occupying nearly ten pages of the
printed abstract, fully covering all points necessary for the
defense, and we are satisfied that if there was any error in
this respect it was against the plaintiff. Cross-errors have
been assigned by appellee relating to the action of the court
in admitting and excluding evidence and in giving and refus-
ing instructions, the argument being confined in the main to
tlie latter. Whatever errors may have beeft committed
against the appellee he was not prevented from recovering a
verdict which he reduced by remitting the aoin of $5, leaving
the amount for which judgnient was rendered in his favor.
At the close of appellee's brief we find, after a full discussion
of the errors and cross-errors, a declaration that the judgment
ought to be afllrmed, from which we infer that appellee is sat-
isfied with the judgment and does not seek the ruling of this
cjourt upon the cross-errors unless the judgment should be
reversed on some of the eiTors assigned by appellants.
We are of opinion that substantial justice has been done
and that the judgment of the Circuit Court should be
afifirmed.
Judgment affimved.
Henry Tobin
v.
J. H. Colli EB.
Mechanic^ s Liens — Bill to Enforce — Written Contract,
In a proceeding to enforce a mechanic's lien, this court const rues a writing
given the defendant by the complainant setting forth the amount for which
certain labor and material would be furnished, and affirms the decree for
the latter.
[Opinion filed January 24, 1891.]
Third District — November Term, 1890. 479
Tobin V. Collier.
Appeal from the Circuit Court of McLean County; the
Hon. Owen T. Eeeves, Judge, presiding.
Mr. C. F. Mansfield, for appellant
Mr. Thomas F. Tipton, for appellee.
"Wall, J. This was a proceeding to enforce a mechanic's
lien. • Decree was rendered, as prayed, for $54.27, from which
an appeal is prosecuted to this court by the defendant It
appears that the defendant, who was building a dwelling
house, applied to the complainant, who was a hardware mer-
chant, to furnish certain articles %)f hardware, tin work and
cresting contained in a list of specifications made out by an
architect
The complainant made his estimate on the articles of hard-
ware, but was in doubt as to the meaning of the specifications
in regard to the tin work, and was unable also to estimate the
cresting because he had no manufacturer's catalogue describ-
ing the kinds called for. The weight of the evidence tends
to prove that it was fully agreed by the parties that the com-
plainant would furnish the whole bill, except the cresting, for
$128.45, provided the entire amount of tin work should not
exceed 580 square feet, for any excess whereof six cents per
foot should be charged, and for any less a deduction should
be made at the same rate.
The defendant wished the matter put on paper and as tfie
hour was late and it was near the time of the train which
defendant was to take, the complainant gave the defendant a
a writing as follows :
"Gibson City, III.
" IIenby Tobin, Esq., Howard.
^^Dear Sir: — I will furnish you hardware for vour house
as per specifications furnished me and marked 'A,' for $128.45;
goods to be delivered at Howard, 111.
" J. H. Collier."
The above includes labor of putting on roof."
The complainant furnished the materials and the work and
480 Appellate Courts of Illinois.
Vol. 39.J Tobin f. Collier.
the defendant insisting that $128.45 covered it all refused to
pay more. The present suit was to recover for the price of
the cresting and for the excess of the work over 580 square
feet.
It is now contended by appellant that as the contract was
reduced to writing, oral proof can not be heard to explain or
contradict it, and that there is notliing in the case to give a
court of equity jurisdiction to reform the written contract.
It win be seen that the writing which constitutcB the
agreement relied on proposes merely to furnish the hardware
and tJie labor of putting on the roof.
In terms, notliing more is undertaken. The proof does
not show that the word "hardware," as used by builders and
architects would include tin work or cresting. In the com-
mon acceptation of the term, tin work would not be included,
and it would be a strained and forced construction to make it
include the item of cresting. It might as well include iron
fencing. Taking that view there is no difficulty in the case.
The complainant does not seek all he might in respect to the
tin work, but confines liis demand to the excess over 580
feet, and to the price of the cresting. But if it should be
conceded that the written agreement is uncertain and ambig-
uous, so tliat it must be disregarded, then there is proof that
for the whole service, including labor and materials, the com-
plainant might reasonably receive the sum here allowed iu
addition to the $128.45 wliich was paid.
It is probably true that it was not intended by the parties
that the bid should include the entire list contained in the
specifications, and tliat the only purpose of the writing was to
state the amount, subject to the conditions, which both parties
well understand, and it is fortunate that without doing vio-
lence to the language used, the real understanding can be
carried out The decree appears to be just and it will be
affirmed.
Decree affirmed.
Third District — November Term, 1890. 481
Nealon v. The People.
Timothy Nealon and John McGonnigal
V.
The People of the State of Illinois.
Practice — Indictments— Quashing of— Grand Jury,
1, A motion filed to correct the recordt so as to show the method of com-
pletinjr panel of pranrl jurors, by a defendant, previously to pleading to an
indictment, should be overruled where none of the grounds mentioned
therein would have justified the court in quashing the indictment.
2. A grand jury, when properly organized, meets and adjourns upon
its own motion, without reference to the temporary adjournment of the
court, and it may lawfully proceed in the performance of its duties whether
the court is in session or not; bat this right to remain in session will not
extend beyond the final adjournment of the court for the term, but within
such limits it will be governed by its own wishes, subject* to the contro]
that the court at all times has over it
8. A mere irregularity in drawing a jury is not sufficient cause to sus-
tain a challenge to the array, unless the irregularity complained of is of
such a character as would probably have produced a change in the panel, or
presented a list of names to choose from, different from those which would
be produced by a compliance with the law.
4. In the case presented, this court holds as erroneous, the overruling
of the challenge to the array of the petit jury, the county board having
disregarded the provisions of Sec. 2, Chap. 78, R. S.
5. When a case is called for trial, and the regular panel of twenty-four
men is for any cause not full, the court may order it filled from the
bystanders; but after the selection of the jury has begun and this number
becomes reduced, so there are' not twelve jurors to plt^ce in the box, the
court should order only enough to be selected from the bystanders to keep
twelve men in the box and need not keep the original panel of twenty-four
full.
6. The questions to be cosked of jurors on their voir dire, and the time
permitted to be occupied in examining jurors, is largely within the discre-
tion of the court in a given case.
[Opinion filed January 24, 1891.]
In erkob to the Circuit Court of Macon County; the Hon.
E. P. Vail, Judge, presiding.
Messrs. Kitbens & M!ott, Jambs J. Finn and D. Hutchin-
son, for plaintiffs in error.
ToL. XXXIX 31
482 Appellate Courts of Illinois.
Vol. 39] Nealon v. The People.
Mr. I. R. Mills, State's Attorney, for defendant in error.
Conger, P. J. PlaintiflFs in error were indicted, tried and
convicted for selling intoxicating liquor to minors. They
bring the record to this court and assign humerous errors.
It appears that upon the convening of court but seventeen
grand jurors answered, whereupon the court ordered the
sheriff to summon from the body of the county six persons
having the qualifications of grand jurors. That the sheriff
summoned six persons from the bystanders, four of whom
resided in the township of Decatur, and these six, with the
seventeen originally summoned, constituted the grand jury
that found the indictment upon which plaintiffs in error were
tried.
Plaintiffs in error before pleading to the indictment filed a
written motion, supported by aflidavits, to correct the record,
so as to show that the verbal order made by the court to the
sheriff was to summon from the bystanders a sufficient num-
ber to complete the panel of grand jurors; and also to show
that of the six selected, four were from Decatur township.
This motion was by the court overruled, and we think prop-
erly,
*' No indictment shall be quashed * * * by reason of
the disqualification of any grand juror." Sec. 411, Criminal
Code. None of the grounds mentioned in the motion would
have justified the court in quashing the indictment, and hence
it was not important that the record should have been cor-
rected. Fletcher v. The People, 81 111. 116.
The second error assigned is that the court erred in not
quashing the indictment.
It is urged that the court should have sustained the motion
to quash, first, for the reasons set forth in the first assignment
of error, and also for the further reason, that after the grand
jury had been imiianeled and commenced its work, there was
an adjournment of the court for a few days, during which
the judge was absent in another county holding court, and
this fact, it is claimed by plaintiffs in error, suspended the func-
tions of the grand jury, while the judge was so absent, and
Third District — November Term, 1890. 483
Nealon v. The People.
all their proceedings daring stich absence were void. It will
be observed that the adjournment was not for the term, but
only temporary, such as occurs at the close of each day that
the court may be in session, or for the Sabbath day, or any
other occasion requiring an adjournment for some temporary
purpose.
The grand jury when properly organized meets and
adjourns upon its own motion, without reference to the tem-
porary adjournment of the court, audit may lawfully proceed
in the performance of its duties whether the court is in
session or not.
This right to remain in session would not, of course, extend
beyond the final adjournment of the court for the term, but
within such limits it would be governed by its own wishes,
subject to the control that the court at all times has over it.
It is next insisted that the court erred in overruling the
challenge to the array of the petit jury.
In support of this motion affidavits were read showing the
following state of facts in reference to the methods used for
procuring the jury : At the meeting of the county board in
July, 1889, the jury list was made up by each of the members
presenting a list of names supposed to represent ten per cent
of all the legal votera in the township or precinct represented
by such member, all the names together numbering 957; that
all these names were by the county clerk copied into a book
kept for that purpose; that all of these names were then
copied upon cards, one name on each card, and all said cards
placed in a box, from which box the panel of thirty jnrors
required for the term was drawn. In thus proceeding, the
board wholly omitted and disregarded the provisions of Sec.
2, of Chap. 78, entitled, " Jurors." This chapter provides in
the first section that a list shall be made of not less than ten
per cent of the legal voters, as seems to have been done in
the present case.
The second section provides that the board shall from such
list 80 prepared make a second list, by selecting from tlie first
a number of names equal to one hundred for each trial term
of the Circuit Court and other courts of record, except the
484 Appellate Courts of Illtxois.
Vol. 39.1 Nealon v. The People.
County Court, and in making this second or sub-list the
board must take into consideration tlio fallowing four qualifi-
cations, not required in making out the first or ten per cent
list, viz., they must take such only a^ are :
Fir%L Inhabitants of the town or precinct not exempt frona
serving on juries.
Second. Of the age of twenty-one years or upward, and
under sixty years old.
Third, In the possession of their natural faculties, and
not infirm or decrepit
Joufth, Free from all legal exemptions, of fair character,
of approved integrity, of sound judgment, well informed, and
who understand the English language.
Tlie third and fourth sections provide for the making of
such list at other than the time fixed, and also for exemptions
from jury duty.
The fifth section provides that the board shall check oflE
from the ten per cent list the names of those selected to
form the sub-list and the names upon such sub-list shall not
be ag^in selected as jurors until every person named upon the
ten per cent list qualified to serve as a juror has been selected,
or until the expiration of two years from the time of making
the original or ten per cent list, when a new list shall be
made.
At the expiration of two years all names undrawn in the
box and also the names of those who have been drawn, but
have not served upon a jury during the year for which they
were selected, if qualified, should form part of tlie sub-list
selected at that time for the ensuing year.
By the seventh section this sublist to he selected annually
from the ten per cent list, furnishes the names to be written
upon separate tickets and placed in a box, and from which
juries are drawn as provided in section 8.
The Supreme Court has said, " that a mere irregularity in
drawing the jury, where no positive injury is shown to have
been done the accused, is not sufiScient cause to sustain a chal-
lenge to the array." Wilhelm v. The People, 72 111. 471;
Mapes V. The People, 69 111. 523.
Third District — November Term, 1890. 485
Nealon v. The People.
It therefore becomes necessary to determine whether the
failure by the county board to obey or notice the section
requiring a second or sub-h'st to be prepared is such a mere irreg-
ularity as could reasonably be said to work no positive injury
to plaintiffs in error. If the language above quoted from the
Supreme Court means that in all cases an accused person,
who has unsuccessfully challenged the array of jurors, must,
before he can successfully assign error upon the action of the
court in overruling his challenge, show that some positive
injury has been done him by the failure or irregularity, then
any of the provisions of the jury law might be violated, and
the accused could not be heard to complain.
If a jury had been selected by the sheriff to try plaintiffs in
error, entirely without and against law, it might be that those
selected had all the qualifications required by law, were good
men, and had given plaintiffs in error a fair and impartial
trial, and therefore they could not complain.
We do not understand the Supreme Court to mean this, but
that the irregularity complained of must be of such a char-
acter as would probably have produced a change in the panel,
or presented a list of names to choose from different from
those which would be produced by a compliance with the law.
It is the right of an accused to have a jury selected in compli-
ance with the law, and any substantial and material depart-
ure from the methods pointed out' by the statute is certainly
a wrong to him, of which he has a right to complain.
In the Mapes case, s^ijpra^ the error complained of was that
Lee, who was an officer de jure^ shook the box previous. to the
drawing of the names of the jurors instead of the county
clerk, and the court say : " What possible difference could it
make in the result, whether the box containing the name was
" well shaken " by Lamorte.or Lee?
In the Wilhelm case, supra^ the character of the irregularity
does not appear from the opinion; it is only spoken of as one
that would produce no positive injury to the accused.
Tlie failure of the county board to select from the original
or ten per cent list, the sub-list required by Sec. 2, was, we
think, a substantial departure from the law which would work
a positive injury to the accused.
48(> Appellate Courts of Illinois.
Vol. 39. 1 Nealon v. The People.
The oripnal list contains the names of voters without any
reference to any of the qualifications of. jurors i^equired by
Sec. 2, except the first, i. e.^ that they shall be inhabitants of
the town or precinct.
In making the second or sub-list, the county board are
required to exercise their judgment, and to use their personal
knowledge of the men of their precinct, to present names of
those only who are of the age of twenty-one years and under
sixty, in the possession of their natural faculties, not infirm or
decrepit, free from all legal exceptions, of fair character,
approved integrity, sound judgment, well informed, and who
understand the English language.
This sifting of the original list by the members of the
county board is not a mere useless form, but an important
duty they owe to the public, and one which they can not omit
without materially lowering the character and intelligence of
those composing the juries of the county.
The failure of the county board to perform their duty, in
all human probability, presented to the accused in this case, an
entirely different panel of jurors from those which should
have been presented, had the law been complied with. It is
almost impossible to suppose that thirty names drawn from a
box containing the nine hundred and fifty-seven names on the
original list would be identical with those drawn from a box
containing the names only of the sub-list.
The omission to observe the provisions of section 2 has
therefore, resulted in tlie selection of the jury from an entirely
different class of men than that intended by the law, and did,
in all Iiuman probability, present to plaintiffs in error different
individuals to choose a jury from than would have been pre-
sented had the law been complied with.
The true rule, we think, is laid down in Ferris v. The Peo-
ple, 35 N. T. 129, where it is said: "The question arises
whether any injury has resulted to the prisoner, or has he
been prejudiced thereby. If we could see that by any possi-
bility this neglect of duty on the part of these officers could
have changed the panel or in any manner have produced a
different result, we might hesitate whether the prisoner
should have a new trial."
Third District — November Term, 1890. 487
Neulon v. The People.
We are of the opinion that the Circuit Court erred in not
sustaining the challenge to the array of petit jurors.
The fifth and sixth errors assigned are not well taken.
Tlie questions to be asked of jurors on their voir dire^ and
the time permitted to be occupied in examining jurors, is
largely within the discretion of the court It is quite appar-
ent, from an inspection of the record, that counsel for plaintiffs
in error were captious and dilatory, and seemingly more
desironsof asking unnecessary and flippant questions of jnrors
than of treating the court with respect and expediting the
business.
We think the court was fully justified in its rulings upon
tliese questions.
The fourth assignment of eiTor, as we understand it, is, that
when the selection of the jury was begun there were twenty-
four jurors present, ready to answer ; that after thirteen of
these had been excused, leaving but eleven in the box, the
court ordered the sheriff to summon one juror to fill the panel
of twelve in the box ; whereas plaintiffs in error insist that
the full panel of twenty-four should have been kept full until
the jury was completed. The action of the court in this re-
sjDcct was not erroneous.
By Sec. 12, of Chap. 78, K. S., it is provided that in
case a jury shall be required for the trial of any cause before
the panel is filled, it shall be filled from the bystanders. By
the term panel, as here used, is meant twenty-four jurors.
But when in impaneling the jury, the number becomes
reduced, so that there are not twelve men in the jury box.
Sec. 13, of the same chapter, provides for filling the panel
from the bystanders, and the word, panel, as used in this sec-
tion, means a panel of twelve men.
In other words, when a case is called for trial, and the
regular panel of twenty-four men, is, for any cause not full,
the court may order it filled from the bystanders, but after
the selection of the jury has begun and this number becomes
reduced so there are not twelve jurors to place in the box, the
court then orders only enough to be selected from the by-
standers to keep twelve men in the box, and need not keep
488 Appellate Courts of Illinois.
Vol. 89.] DwelUnsr House Ins. Co. v. Bailey.
the ori\e;inal panel of twenty-four full. This, we nnderstand,
was the course pursued by the court, and was, in our opinion,
the proper method.
Because of the error of the court, in overruling the chal-
lenge to the array of the petit jury, the judgment of tho
Circuit Court will be reversed and the cause remanded for a
new ti'iaL
Heversed and remanded.
The Dwelling House Insurance Company
V.
Henry Bailey et al,
♦
Fire Insurance — Note for Premium — Fraud in Procuring.
Where the agent of an insurance comrany fraudulently writes a note
above the sifrnature of a person Mr' ho signs what, he supposes to be an appli-
cation for insurance, it is void while in the hands of said company although
the person signing might be guilty of such carelessness in not a.«certiiining
what he was signing, as would make him liable to u bona fide assignee
before maturity.
[Opinion filed January 24, 1891.]
Appeal from the Circuit Court of Moultrie County; the
Hon. J. F. Hughes, Judge, presiding.
Mr. I. D. Walkeb. for appellant.
Messrs. Eden & Cocoean, for appellee.
CoKGEK, P. J. This case is similar in most respects to that
of appellant against Downey, 39 111. App. 524.
Appellee signed, as he supposed, an application for insur-
ance, but, in fact, signed his name at the bottom of a blank
note attached to and at the bottom of the application, which
note was afterward tilled up by the agent of appellant who
Third District — November Term, 1890. 489
Dwelling House Ins. Co. v. Bailey.
took the application with knowledge at the time, that api)el-
lee did not intend to sign a note or paper which should after-
ward be transformed into a note. Under such circumstances,
while the paper is in the hands of appellant, appellee can suc-
cessfully resist its payment.
Appellant's counsel make the point that appellee could read
and was guilty of gross carelessness in not reading and under-
standing the paper before he signed it.
In Mead v. Munson, 60 111. 49, and in Taylor v. Atchison,
54 111. 196, it is held that, when a note has been indorsed
before maturity, the maker, before he can sustain the plea of
fraud and circumvention, must show that he used reasonable
and ordinary prudence to protect himself from imposition.
But in the latter case the court say: "As to the payee, it
may be otherwise."
Appellee did not sign the note iu suit, nor did he intend to
sign any note, and we have no hesitation in holding that,
when appellant 6r its agent fraudulently and wrongfully wrote
a note above appellee's signature, it was void while in the
hands of appellant, although appellee might be guilty of such
carelessness in not ascertaining what he was signing as would
have made him liable to a bona fide assignee before maturity.
Although the questions of fact were contested quite sharply,
yet, we see no good reason for interfering with the conclu-
sions reached by the jury, and believing that justice has been
done by their verdict, the judgment of the court below will
be affirmed.
Judgment affirmed.
490 Appellate Courts of Illixots.
Vol. H9.] McCrory v. Hamilton.
39 4UU
83 4961 William E. McCrory
V.
James Hamilton, for use, etc.
Replerin—Bond^Artion of Debt— Sec. 123, Chap.3,B,S.'Sui'virar'
ship — Sale — Judgment.
1. Under Sec. 123, Chap. 8, R. S., an action of replevin KtirTives. ami
such survivorship applies in case of the death of the defendant as well as
that of the plaintiff.
2. A judgmont in such case, not that thf> property be returned to the
defendant, but that he have a writ of retorno habendo, while informal is not
so defective as to be re^rarded as a nullity.
3. The mere fact that witnesses may use the terms sell or sale, or that
the parties to a griven transaction used such term«, does not operate to make
the same a sale, if upon consideration thereof it appears there was none.
4. In an aclion of dnbt upon a replevin bond, this court holds, in view of
the evidence, that the judgement for the plaintiff can not stand.
[Opinion filed January 24, 1891.]
Appeal from the County Conrt of Coles County; the
Hon. L. C. Hknley, Judge, presiding.
Messrs. Fryke & Neal, for appellant.
Messrs. F. K. Ddnn and Jai^es W. Craig, for appellee.
Wall, J. This was an action of debt on a replevin bond.
The replevin suit was brought October 16, 1883, by F. F.
Kandolj)!! against Robert Kane for a quantity of barrel staves
and heading valued at f400. The writ was executed by
replevying the property and delivering it to the plaintiff.
The defendant died pending the suit and his administrator
was made a party in his stead and at the September term,
1887, tlie suit was dismissed for want of prosecution. The
property not having been returned the present action was
brought, resulting in a judgment of J589.75 in favor of tlie
plaintiff therein, from which an appeal is prosecuted to this
Third District — November Term, 1890. 491
McCrory v. Hamilton.
court by defendant McCrory, who was the surety on the bond.
Tlie first point made in behalf of the appellant is, that upon
the death of Kane the replevin suit abate<l and could not be
revived against his administrator.
By Sec. 123, Chap. 3, R. S., it is provided that in addition
to the actions which survive at common law the action of
replevin (and others named) shall survive. But counsel urges
that means merely that it shall survive only in favor of the
representatives of the plaintiff, the injured party. In Wehr
V. Brooks, 21 111. App. 115, we held that the provision of the
statute is not so limited and we see no occasion to depart from
that ruling.
It is next urged that the judgment in the replevin suit is
not sufficiently formal and that it is not in terms a judgment
that the property be returned to the defendant, as alleged in
the declaration, but merely that the defendant have a writ of
retomo habendo.
The objection is, as we think, not substantial. While the judg-
ment is somewhat informal, yet it is not so defective as to be
regarded as a nnllity. In effect it is an adjudication of cost
against the plaintiff and that the property be returned to the
defendant. We are not inclined to the very technical view
suggested by appellant and must overrule the objection.
Certain objections to the action of the court in admitting
and excluding evidence are also considered not well taken, and
as we think they are not important in the view we take of
the merits of the case, they need not be discussed. The main
question presented arises upon the evidence and the con-
clusion to be drawn from the standpoint of the appellee. The
proof shows that Kane was a cooper and that Randolph was
a miller; that Randolph delivered a lot of the staves and head-
ing, of which the property replevied was a part, to Kane, from
which Kane made and was to make flour barrels to be
delivered to Randolph; that the material was mostly worked
up in this way when Randolph gave notice to Kane that he
would need no more barrels and demanded the staves and head-
ing then on hand, which demand not being complied with the
replevin suit was bronght. The evidence is conflicting as to
492 Appellate Courts of Illinois.
Vol. 39.J McCrory v. Hamilton.
the terms of the arrangement, it being contended on the part of
Randolph that the staves and heading were always his proj>erty
and that Kane was to be paid for his work at eighteen cents
per barrel; while, as Kane contends, the staves* and heading
were sold to him and became his absolute property at certain
rates named, and that he was to pay for the same in barrels
at certain prices named for barrels of ten and twelve hoops
respectively.
It was evidently made a question before the jury upon
which the case was supposed to hinge, whether the material
was sold to Kane or whether it always continued the prop-
erty of Randolph. If the latter, then it seems to be con-
ceded that no more could be recovered in this suit than the
amount of whatever was due to Kane for the work done by
him when the demand was made; but if he purchased the
property it is assumed that the value of wiiat was replevied
may be recovered without regard to the fact that it was not
fully paid for.
It seems quite clear that though the form of the transac-
tion may have been an agreement to sell the materials to
Kane at certain rates and that be should sell the barrels to be
made out of it back to Randolph at certain prices, yet
it was not in any proper sense a sale of property on either
side as that term is usually understood.
It was rather a delivery for the special purpose of making
up into barrels which were to be delivered to Randolph. Had
Kane refused to do this or had he sold or disposed of the
property in any other way he would have broken his contract
with Randolph. The mere fact that the witnesses may use
the terms sell or sale or that the parties may have used them,
will not make it a sale when, upon a consideration of the
whole matter, it appears that there was no sale.
We can not believe that it was intended by the parties to
change the general ownership of the property, and while
Kane ma^y have been and was invested with a special owner-
ship or interest, it was for the purpose and upon the express
trust that he wojild do certain work upon it and return it.
He was to be charged with it at certain prices and was to be
Third District — November Term, 1890. 493
Hesfl V. KeiBer.
credited with certain prices upon what he was to return. It
is a misuse of terms to call tliis a sale on either side.
Kane had a lien for any balance due him for the work done,
and if Randolph improperly prevented him from manufac-
turing the rest of the material, he was also entitled to fair
compensation for damages thereby sustained and his lien
would include that item also; but we are of the opinion that
this is the full extent of his demand, in any event, even ac-
cepting the testimony offered by the appellee as the true ver-
sion of the matter. The judgment must therefore be reversed
and the causa rem inded.
Reversed and remanded.
Conrad Hess
V.
Henry Keiser.
Sale6 — Joh\t LiahiWy as Partners — Evidence.
In an notion broug^ht to recover for articles sold, this court holds, in view
of the evidence, that a person named was not liable as a partner of the pur-
chaser, and that the judgment for the plaintiff can not stand.
[Opinion filed January 24, 1891.]
Appeal from the County. Court of McLean County; the
Hon. C. D. Metbbs, Judge, presiding.
Mr. E. P. Holly, for appellant
Messrs. Eerrick, Luoas & Spencer, for appellee.
Conger, P. J. This was an action brought by appellee
before a justice to recover a bill amounting to $12.95 for
machine supplies sold to Peter Hess, who, during the summer
494 Appellate Courts of Illinois,
Vol. M9.] Hess v. Reiser.
and fall of 1889, operated a threshing machine in the vicinity
of Bloomington, Illinois, where the appellee did business.
Appellee brought his action against both Peter Hess and
appellant, his father, on the ground they were jointly liable.
The only evidence of joint liability was the introduction of
the notes and chattel mortgage given to secure the payment
for the threshing machine, they all being signed : *' Peter
Hess, Conrad Hess," and a propei ty certificate signed by
Conrad Hess upon the back of these notes.
Conrad Hess, Peter Hess and D. B. Harwood, the latter
the agent who sold the threshing machine, all testify that
Conrad Hess was not a partner of his son, but only surety
upon the notes given for the purchase money. Appellee
then called William ShafiFer, a justice of the peace, and proved
by him that one Fred Jerke obtained a judgment before him
against Peter and Conrad Hess for wages earned when work-
ing with the machine and on the farm of Conrad Hess. This
was the entire evidence as to partnership or joint liability.
Appellee testified that he sold the supplies to Peter Hess;
that lie charged them on liis books to Peter Hess; that at the
time of the sale he did not know that he liad a partner; that
some time after the sale of the supplies somebody told him
that he could also hold Conrad Hess; that Conrad Hess had
never done anything prior to the sale to lead him to believe
that he was a partner; but at the time of the sale he thought
he had to collect his bill of Peter Hess alone. Notwithstand-
ing this unqualified statement of appellee, the court gave the
following instruction, viz.:
"The court instructs the jury that although they may
believe from the evidence that the defendant, Conrad Hess,
was not a partner and owner of the threshing machine with
his son, Peter Hess, yet if the jury believe from tlie evidence
that he held himself out to the world, and acted and conducted
Iiimself as a partner in and about the management and running
of the threshing machine, and that while he was so holding
himself out as a partner, the plaintiff furnished the labor or
materials sued for in this case, relying upon such partnership^
then the jury should find for the plaintiff and against the
defendant, Conrad Hess."
Third District — November Term, 1890. 495
L. E. & W. R. R. Co. v. Chrietifion.
This was error. Under his statement appellee could not
recover except he could show tliat an actual partnership
existed. This he utterly failed in doing. The judgment of
the Count; Court will bo reversed and tlie cauee remanded.
Reversed atid remanded.
Lake Erie & Western Railroad Company
V.
Christ Ghrtstison.
39 495
97 1574
Ra i f road ft — RJeefm ent of Passengers— Da w ages — Practice — Discretion
of Trial Courts — Evidence — Instructions — Practice,
1. In an action for tort where the averments of the declaration are divis-
ible, the plaintiff may recover upon proof of euougb to ntake a cause of
action.
2. In such cane mere surplusage will not vitiate, but where some state-
ment on the subject is necessary and it can not be wholly rejected, a variance
or failure to prove as laid is fatal.
8. Punitive damasres are admissible wherd the injury is wantonly in-
flicted, and are visited upon the wrongdoer by way of mere punishment,
regardless of the amount of damages actually sustained.
4. The indignity suffered by reason of the unlawful act of another is a
proper subject of compensation whether the act was wanton, malicious or
wilful, or whether it wtis merely negligent or mistaken.
5. What the indignity is in a particular case is a question of fact for the
jury.
6. It is proper to refuse to repeat, or absolutely refuse an instruction
where the same contains elements calculated to mislead or confuse the jury.
7. In an action brought for the recovery of damages for the alleged
wrongful ejectment of plaintiff from a railroad train, this court holds, in
view of the evidence, that the trial judge was guilty of no abuse of discre-
tion during the trial thereof in the court below; that there was no error
in the giving or refusinpf of instructions, and declines to interfere with the
judgment for the plaintiff.
[Opinion filed January 24, 1891.]
Appeal from the Circuit Court of Ford County; the Hon.
A. Sample, Judge, presiding.
496 Appellate Courts of Illinois.
Vol. 39.1 L. E. & W. R. R. Co. v. ChriPtison.
■
Mr. Milton H. Cloud, for appellant.
Messrs. Cook & Moffett, and A. L. Phillips, for appellee.
Wall, J. This was an action on tlie case for damages
accruing to the plaintiff on account of being put off a train
on the defendant's railroad. The plaintiff recovered a judg-
ment for 875, from which the defendant has prosecuted an
appeal to tliis court.
The plaintiff alleges that he applied to the ticket agent
for a ticket from Gibson to switch D., and that the agent
refused to sell him a ticket but assigned no reason for such
refusal; that he then got upon the train after having learned
from the conductor that it would stop at said station; that
lie conductor required him to pay ten cents extra for having
no ticket, which he refused to do, and then the conductor
stopped the train and told him to get off at a point about one-
third of a mile from the station house at Gibson. The con-
tention of the defendant is that the plaintiff got off volun-
tarily and without any force or even a request to do so from
the conductor.
The occasion was a dark, rainy night on the 30th of May,
1889, and while the plaintiff was subjected to no very serious
loss or inconvenience, yet the matter was one of some annoy-
ance, and was an invasion of his rights, if the facts were as
he stated.
The only substantial point of fact in dispute was whether
the plaintiff left the train voluntarily, or whether he was
ordered off and yielded to the authority of the conductor.
The evidence is in conflict, but there is sufficient to support
the finding, and as this is the third verdict to the same effect
as we learn from the briefs, we should be disinclined, even
were the proof less satisfactory, to reverse the judgment upon
this ground. It is objected by appellant that the court erred
in allowing the plaintiff to ask his own witness Naglo whether
he had not made a certain statement out of court.
The question was evidently asked for the purpose of re^
freshing the memory of the witness but it resulted in elicit-
Third District — November Term, 1890. 497
L. E. & W. R. R Co. V. Christison.
in^ nothing of importance, and it is clear tliat no harm was
done to the defendant even assnming that the question was
irregular. This, however, is a matter very much in the dis-
cretion of the court, and it does not seem that die discretion
was abused.
It is next urged that the court made an improper remark
in the presence of the jury.
This alleged impropriety occurred during the cross-exami-
nation of the plaintiff as to wliat he had testified on a former
trial, and when a certain question was asked to which the
plaintiflE objected the court said: " I don't see that there is any
contradiction in that between what he then testified and what
he now says," meaning, as wo understand, that the question did
not imply a contradiction, however it might be answered, and
therefore sustained an objection to it. The cross-examination
as to what the plaintiff formerly testified had already been
quite protracted, and we can not see that the discretion of the
court was improperly exercised in declining to permit it to
be continued, or that the remark just quoted could have had
any particular effect upon the jury.
It is also urged that the court erred in giving instructions
for the plaintiff, tlie first objection being that the instruc-
tions permitted a recovery upon less evidence than was neces-
sary to support all the averments of the several counts to
which the instructions were applicable. In actions for tort
where the averments of the, declaration are divisible, the
plaintiff may recover upon proof of enough to make a cause
of action. The instructions referred to are not subject to
objection in this respect. They embodied all that was neces-
sary to constitute a cause of action even though they may
have omitted some immaterial matters averred in the decla-
rations, such as an offer to pay for a ticket which plaintiff
was then applying for and the like. " In torts the plaintiff
may prove a part of his charge if the averment is divisible
and there be enough pi'oved to support his case." 1 Ch.
PI. 387.
The authority cited by appellant is not in point, as in that
case the averment in question was deemed essential, and as it
You XXXIX 32
498 Appellate Courts of Illinois.
■' ' ' ' ■ ' .. . ■ . .
Vol. 39.] L. E. & W. R. R. Co. v. Christison.
could not be wholly i^ejected, it was necessary to prove it as
laid. Mere surplusage will not vitiate, but where some state-
ment on the subject is necessary, and it can not be wholly
rejected, a variance or failure to prove as laid is fatal. Here
the omitted matters were not essential and the averments
were divisible.
It is objected to the instructions, secondly, that the court
advised the jury in substance that if the defendant was liable,
the plaintiff was entitled to recover not only the actual
damages sustained, but damages for the indignity he suffered,
it any such was shown by the evidence, and that in this there
was error, because damages for indignity are punitive in their
nature, and whether punitive damages are allowable is for the
jury, a plaintiff never being entitled to merely punitive
damages as a matter of right. Punitive damages are admis"
sible where the injury is wantonly inflicted, and are visited
upon the wrongdoer by way of mere punishment, regardless
of the amount of damages actually sustained. The indignity
suffered by reason of the unlawful act of another is ax)roper
subject of compensation whether the act was wanton, ma-
licious or wilful, or whether it was merely negligent or mis-
taken.
The suffering thereby occasioned is not to go unrequited,
however, because there is no improper motive or purpose, and
is a ground of damage quite apart froui the matters which
distinctly give rise to punitive or vindictive damages.
In Penn. Co. v. Connell, 112 111. 305, it was conceded and
assumed that one unlawfully ejected from a train was entitled
to "reasonable damages for the indignity."
What the indignity is in the particular case must be a ques-
tion of fact for the determination of the jury.
We think there was no error in the action of the court
giving instructions for the plaintiff, nor do we find error in
the refusal to give certain instructions asked by defendant As
is frequently observed, the proper and material portions of
those refused will be found sufficiently for all purposes in
those given for the defendant. It is not error to refuse to
repeat, or to refuse where the instruction contains elements
Third District — November Term, 1890. 499
Purcell y. Town of Bear Creek.
calculated to mislead or confuse the jury. The last point
urged in the brief that the verdict is against the evidence has
been already considered in connection with others except as to
the amount of damagesallowed. According to theevidence of
the plaintiff, he was anlawf ully ejected from the train and was
entitled to recover therefor; and while the amount of actual
injury sustained was very slight, yet as we have indicated the
jury had the right to allow a reasonable sum for whatever
indignity was thereby occasioned. We are not prepared to say
that the amount allowed is so high as to indicate passion or
prejudice as a necessary conclusion, and we do not feel required
to interfere on that ground. Finding no substantial error in
the record^ the judgment will be affirmed.
Judgment affirmed.
Edward Purcell et al.
V.
The Town of Bear Creek.
Pnncipal and Surety^rTown Supervisor-^ Action on Bond of— See. 102,
Chap. 139, Starr <0 C. III. Stats.— Levy by Auditor.
1. The fact that under the terms of the bond of a township supervisor,
he is required merely to perform his official duties " to tHe best of his skill
and ability/* will not excuse him for a misapplication of money. He must
be held to know the law, and if in doubt, must obtain an adjudication that
will protect him.
2. A board of town auditors has no power, under any circumstances, to
ratify an illegal appropriation of town funds, and such ratification can not
bind the town.
8. The payment of taxes irregularly levied amounts to a ratification, and
such irregularity can not justify the keeping or misapplying of the money
80 raised, by a township supervisor.
4. In the case presented, this court holds that the amount in question
was wrongfully paid to the county treasurer by the township supervisor,
and that the judgment for the plaintiff in an action on the official bond of
such officer can not be interfered with.
I 39~499l
'1S8« 5241
[Opinion filed January 24, 1891.]
500 Appellate Courts op Illinois.
Vol. 39.1 Purcell v. Town of Bear Creek.
Appeal from the Circuit Court of Christian County; the
Hon. J. A. Creighton, Judge, presiding.
Messrs. A. Thorntok and J. C. McBride, for appellants.
Messrs. TV. M. Provine and J. G. Drennan, for appellee..
Wall, J. This was an action of debt on the official bond
of Purcell, as supervisor of the town of Bear Creek. The
case was tried by the court, a jury being waived, and judgment
was rendered for the plain tiflf for the penalty of the bond to
be discharged on payment of $1,382.82 and costs of suit
The roaterial facts in the case are, that the town of Bear
Greek, on the 81st of December, 1881, issued its bonds, ten
in number, for $1,000 each, due ten years after date, with the
optic^n of paying at the end of any year after two years, and
registered the same in the office of the auditor of public
accounts, which bonds were issued to refund certain indebted-
ness incurred by the town in aid of a railroad; that on the Ist
of September, 1885, the board of town auditors levied a tax to
pay two of the bonds, Nos. 5 and 6, the prior numbers having
been paid in the same way; that said levy was certitied to the
county clerk, by tiie clerk extended on the tax books, was
collected by the town collector, by him paid over to Duncan,
who was then supervisor, by him paid to Purcell, his succes-
sor, and by him paid to White, the county treasurer.
Appellant contends that the board of town auditors had no
right to make the levy, that the supervisor had no right to
receive the money and that in any event his payment of it to
the county treasurer was a full discharge of his liability in
respect thereto.
The main point made by appellant seems to be that the
power to make a levy for the payment of these bonds was
vested in the auditor of public accounts and not in the town-
ship authorities. From an examination of the statutory pro-
visions cited by counsel, we are unable to say that the auditor
is authorized to make such levy in any case except where the
obligation has matured and there is a present liability of the
Third Districjt — November Term, 1 890. 601
Purcell V. Town of Bear Greek.
town therefor. Where the town is not yet bound to pay but
seeks merely to exercise its option to do so, there seems to be
no authority conferred upon the auditor to take any action
whatever.
It is urged, however, that if this be so, and if, in any event,
the board of town auditors might make such levy, it was a
prerequisite that the town, by a vote of the electors at a
regular town meeting, should have declared in favor of exer-
cising the privilege of paying before due, and that the town
officera constituting the board had no power to thus act for
the electors.
We are disposed to hold that the supervisor can not be
heard to make this objection after having received the money.
Conceding that the electors might object to such action of
the board and might refuse to abide by it, yet if they ratify
it in the very practical way of paying the tax so levied, there
is but a mere irregularity which could not be pleaded by the
supervisor as a justification for keeping or misapplying the
money so raised.
If, then, the tax was levied properly or must be so regarded
in this instance, was it properly paid over to the supervisor
by the town collector!
By Sec. 102, Chap. 139, Starr & C. 111. Stats., it is provided:
* '' The supervisor shall receive and pay out all moneys raised
therein for defraying town charges and he shall prepare and
tile with the town clerk a full statement of the financial aflFairs
of the town, showing the amount of tax levied the preceding
year for the payment of town indebtedness and charges, the
amount paid out by him including amount paid out on town
indebtedness, specifying the nature and amount of said indebt-
edness and the amount paid thereon, how much on principal
and how much on interest account; the amount and kind of
all outstanding indebtedness due and unpaid, and the amount
and kind of indebtedness not yet due and when the same will
mature."
The question arises whether the payment of these bonds,
imder the circumstances here disclosed, is a town charge.
The liability of the town for the bonds is not disputed nor
502 Appellate Courts op Illinois.
Vol. 39.] Purcell v. Town of Bear Creek.
is it disputed that the town had the right to pay after the
expiration of two j/earsand before the expiration of ten years
when it could be compelled to pay. For the purposes
of this case it may be assumed that the town has availed
itself of this right and it must follow that it has the power to
do what is necessary to that end.
It seems reasonably clear that a town charge thereby arises
and that the money to defray it must, in the absence of any-
statutory provision specifically directing otherwise, be paid to
the supervisor and by him should be paid out upon the debt.
We find no statutory provisions requiring or authorizing*
the supervisor to pay to the county treasurer and such pay-
ment would therefore constitute no defense.
It is urged that the board of town auditors approved the
report of the supervisor showing that the money was paid to
the treasurer and thereby the payment was rendered valid.
The board had no power under any circumstances to ratify an
illegal appropriation of town' funds and their action in this
respect does not bind the town.
Finally, it is urged that the bond sued on is not in the
statutory form and that it merely requires the supervinor to
perform his official duties "to the best of his skill and ability.*'
Whatever qualification may be implied by this phrase in
respect to the obligation aasumed,it can not excuse the officer
for a misapplication of the money. He is presumed to know
the law and if he was in doubt he could easily have obtained
an adjudication that would have protected him.
We are of the opinion the judgment is responsive to the
merits and it will be affirmed.
Judgment affirmed.
Thibd District — Novembeb Term, 1890. 603
Town of Rusbville v. President, etc., of Rushville.
The Town of Rushville
V.
The President and Trustees of the Town of
Rushville.
Municipal Covpofafions — Becovery of Money by — Privity — Payment.
1. Where one receives money which he is no^ entitled to retain, the law
will, in proper cases, raise an implied promise to repay it to him from whom
it came, bat there is no such implied promise to perform a duty in respect
to it which never rested upon him, bat did rest upon the other, to pay to a
third party.
2. Jn such case a party is not compelled at his peril to determine where
the money should have gone in the first place, but when satisfied it is not his,
he may clear himself of all responsibility by returning it to him from whom
he received it, and to whom alone he is accountable.
31 In view of the evidence, this court reverses the judgment for the
p'nintiff in an action brought by one municipality against another to recover
certiiin money collected for tases.
[Opinion filed January 24, 1891.]
Appeal from the Circuit Court of Schuyler County; the
Hon. J. J. Glenn, Judge, presiding.
Messrs. W. L. Vandeventeb and S. B. Montgomery, for
appellant.
Messrs. Prentiss & BATLEY^and L. A. Jarman, for appellee.
Wall, J. This was an action of assumpsit by the appellees
against the appellant, in which the judgment was in favor of
.the former for $1,047.40. The appellees, a corporation under
a special charter granted in 1869, is contained territorially in
part within the boundaries of appellant
Certain money derived from taxes collected for road and
bridge purposes by the collector of the township from prop-
erty within the corporate limits of appellee, was paid by the
30
503
82
42
:«
f.03
-iil
91
39
503
71
326
89
rm
IjJO
823
604 Appellate Courts of Illinois.
Vol. 39.] Town of Rashville v. President, etc., of Rusbville.
collector; one-half to the treasnrer of appellee and the other
half to the treasurer of the highway commissioners of appel-
lant.
The appellee claiming that all the money thus collected was,
by the lei ujs of the charter, payable into its treasury, brought
this suit to recover the sum thus realized by appellant.
We have heretofore held that the provision of the charter
of appellee in respect to the proceeds of the road and bridge
tax on property within its bounds, was not abrogated by the
act of 1883, and that appellee was entitled to the whole of
said tax, and we see no occasion to recede from the position
then taken. See 32 111. App. 320.
Assuming that the collector erroneously paid one-half of
the collection to appellant and that he should have paid it all
to the appellee, the question arises whether the appellant can
be required to pay it to appellee.
We think not. There is no privity. The mere fact that
the collector paid the money to appellant does not discharge
him from his duty to pay it to appellee. He is still the debtor
of appellee to that extent, but appellant need not answer ap-
pellee in regard thereto. It may, perhaps, be required to
refund to the collector, but it is under no promise or duty to
appellee.
Where one receives money which he is not entitled to
retain, the law will, in proper cases, raise an implied promise
to repay it to him from whom it came, but there is no snch
implied promise to perform a duty in respect to it which
never rested upon him, but did rest upon the other, to pay to
a third party.
He is not compelled, at his peril, to determine where the
money should have gone in the first place; but, when satisfied
it is not his, he may clear himself of all responsibility by re-
turning it to him from whom he received it, and to whom
alone he is accountable.
The plaintiff's theory is, that the money was received by
the defendant for the use of the plaintiff; but the fact is, that
the defendant received it under circumstances indicating, not
that it was for the plaintiff's use, but rather for its own. In S
Third District — November Term, 1890. 605
Town of Rusbville v. PreBident, etc., of Rusbville.
Greenleaf on Evidence, Sec. 119,' it is said that wliere money
is placed in the hands of a defendant to be paid over to a
third person, which the defendant agrees to do, such third
person may sue for it as money had and received to his ase;
" but if tlie defendant did not consent to so appropriate it, it
is otherwise, there being no privity between them, and the
action will lie only by him wiio placed the money in his
hands." In the present case, the money was paid, no doubt,
under the impression that it rightfully belonged to defendant,
and the facts rebut any suggestion that the defendant was
receiving it for the plaintiff's use.
In Buttei worth v. Gould, 41 N. Y. 450, certain money
was due under a contract between the plaintiff and the Post-
master General of the United States, for carrying the mails;
and a portion thereof, for which the action was broue:ht, was
paid to the defendant by the treasurer of the United otates.
Such payment was made after adverse claims on the depart-
ment by the plaintiff and defendant, respectively. It was
held the defendant was not liable to pay it to the plaintiff,
and the court, quoting from the opinion in the former case of
Patrick v. Metcalf, 37 K Y. 332, said: '' Where two claim-
ants for the same service apply for payment to the party
bound to pay the same, one of whom is recognized as the per-
son entitled to payment, and is paid to tiie exclusion of the
other, who is in fact entitled to payment, the party so ex-
cluded derives no right, from the circumstances, to the money
paid to his competitor. It is not money received to his use,
for payment thus made does not in any respect affect his right
still to call on his debtor for payment to himself, and it makes
no difference whether such debtor is an individual or the
government."
To the same effect is Sergeant v. Stryker, 1 Harrison, 464,
where a sheriff had paid a reward for the apprehension of
an escaped prisoner to tlie defendant, who was not entitled to
it, and was sued therefor by the plaintiff, who had really
apprehended the fugitive.
So in Moore v. Moore, 127 Mass. 22, where the defend-
ant's intestate had received money as his own from an execu-
506 Appellate Courts of Illinois.
VoIm H9.] Carberry v. The People.
tor, who paid it under a mistaken interpretation of his tes-
tator's will, It was hold he was not liable therefor to the
plaintiff to whom the executor should have paid it. A simi-
lar ruling will be found in Rand v. Smalledge, 130 Mass. 367.
In Trumbull v. Campbell, 3 Gilra. 502, the plaintiff sought
to recover money paid the defendant by the State, which the
plaintiff claimed the State should have paid him for certain
services, and it was held he could not recover. So it was
ri!ed in Hall v. Carpen, 27 111. 386, and Carpen v. Hall, 29
Id. 512, where the plaintiff and defendant had each sent cat-
tle to market, which were sold bj the same broker, who in
accounting with the parties paid the defendant too much, and
the plaintiff precisely the same amount too little. The same
principle is announced in Neill v. Chessen, 15 111. App. 267,
and in Atteberry v. Jackson, 15 111. App. 276.
We are of opinion no right of action appears herein, and
the judgment will therefore be reversed. The cause will not
be remanded.
Judgment reversed.
D. E. Cabberry
V.
The People op the State of Illinois.
Criminal Laic — Pharmacists — Failure to Take Out License — Practice,
1. An act in deroflration of common right munt be Btrictly construed so
far as it places restraint upon any useful and lawful calling?.
2. Where a pharmacist entitled to registration pays bin fee, he is entitled
to proceed in his businet^s until the expiration of the year, and he can not
be held liable in a criminal prosecution because of the non-action of the
board of pharmacy in issuing certificate.
[Opinion filed January 24, 1891.]
In error to the Circuit Court of Piatt Countyj the lion.
C. B. Smith, Judge, presiding.
Third District — November Term, 1890. 507
Carberry v. The People.
Mr. C. F. Mansfield, for plaintiff in error.
Mr. James Hicks, State's Attorney, for defendants in error.
Wall, J. The plaintiff in error was prosccnted for a vio-
lation of Sec. 12 of the act to regulate the practice of phar-
macy, the charge being that the defendant "was guilty of
putting up and preparing a prescription," and that he "did
not then and there have a license as required by law." The
prosecution originated before a justice of the peace, where
the defendant wasiined $50, from which jiidgnient he appealed
to the Circuit Court, where the case was submitted to the
court, a jury being waived, upon an agreed state of facts.
The court found him guilty and imposed a fine of $50. By
writ of error the record is brought here. It appears that tlie
plaintiff in error was engaged iu the business of a dispensing
pharmacist, and was by the act entitled to registration upon
payment of the fee to be fixed by the board of pharmacy under
Sec. 9. By successive payments of such fee he renewed his
registration from year to year until 1888, when he omitted it,
and iu August of that year he was lined $50 for failing to
renew. He paid 'said fine, and at the same time paid the
renewal fee for the year ending June 30, 1889. This renewal
fee should have been paid on the 3()th of June, 1888. On
the' 31st of December, 1888, he paid the renewal fee for the
year then ensuing, the board hftving changed the time of
renewing from June to December. No certificate of renewal
was sent him until August, 1889, seven months or more after
the payment of the renewal fee; and the certificate then fur-
nished was in terms for the residue of the year ending Decem-
ber 31, 1889. The present prosecution was for compounding
and selling a prescription in May, 1889, which was during the
time for which he had paid his renewal fee in December, ISS'!^.
We are of the opinion that the defendant was guilty of no
offense, and that the fine was improperly imposed. He was
entitled to registration upon payment of the renewal fee.
Sec. 10 provides that every registered pharmacist who desires
to continue the practice of his profession shall annually,
508 Appellate Courts of Illinois.
Vol. 89.] Carberry v. The People.
during the time he may continue in such practice, on such
date as the board may fix, pay a registration fee for which he
shall receive a renewal of registration. Notwithstanding his
neglect to pay at the proper date in June, 1888, he did not
forfeit his -right to renewal by a subsequent payment, good
for the remainder of the year; and by the payment in Decem-
ber he was entitled to registration for the year ending
December, 1889. The mere fact that the board was dilatory
in issuing the certificate could in no wise prejudice him. He
had done all that was required of him, and was not bound to
close his store until the certificate should reach him. The act
is in derogation of common right and must be strictly con-
strued so far as it places restraint upon a useful and lawful
calling. There are thousands of pharmacies in the State
where prescriptions are constantly presented, and it would be
intolerable if all of these or any of them should be compelled
to suspend business because the board had failed to send its
certificates of renewal. In the very nature of things it would
be impossible for all of these renewals to be furnished at the
time of paying the fee, all payments being due the same day.
The fair and reasonable construction must be that where one
who is entitled to registration pays the fee, and has thereby
done all in his power, he is protected, and may safely proceed
in his business until the expiration of the year. The certif-
icate in such case is merely evidence of his complying with
the law, but it is not the^nly evidence. Strictly speaking
there is no such offense as that set out in the complaint, viz.,
compounding and selling without license. The offense is car-
rying on the business without being registered; and where
one has paid tlie fee, and thereby perfected the right to reg-
istration, he can not be held liable in a criminal prosecution
because of the non-action of the board of pharmacy.
The judgment will be revereed and the plaintiff in en^or will
be discharged.
Judgment reversed.
Third District — November Term, 1890. 509
Mut. A.ccident Ass'n of the Northwest v. Tu^gle.
The Mutcjal Accident Associa tion of the North- isss 428
WEST
V.
Emma A. Tuggle.
L}fe Insurance — Mutual Benefit Association — Certificate of Memherahip
— Action on — Conditions — Accident — Overdose of Poison — Practice Act —
Sec, 24.
1. It should not be aranmed because of the failure of a court to discuss
a certain clause in an insurance policy, the basis of a given action, that the
same was overlooked.
2. A death from an overdose of laudanum, taken by mistake, is within
a clause in a policy of insurance limiting its liability to *' injuries received
by or through external, violent and accidental means."
3. A defendant seeking to raise a point touching a declaration, which*
might bo obviated by amendment, should be required to specifically state it
and should not demur generally.
4. TUis court will not reverse a case on a question which the trial court
did not decide, and which, had it been presented thereto, might have been
obviated.
I
[Opinion filed January 24, 1891.]
Appeal from the Circuit Court of McDonough County;
the Hon. C. J. Soofield, Judge, presiding.
Messrs. Albert H. Veedee and Mason B. Loomis, for
appellant. ^
Messrs. Harris & Mickey and Prentiss & Baily, for
ap])ellee.
We submit that the accidental swallowing of an excessive
quantity of a deadly drug which produced death, as charged
in the third count of the plaintiflE's declaration, was a bodily
injury received by or through external, violent and accidental
means, within the meaning of this policy. Paul v. Travelers
Ins. Co., 45 Hun, 813; Paul v. Travelers Ins. Co., 121 N. Y.
472; 20 N. E. Rep. 347; McGlinchey v. Fid. & Cas. do., 80
610 Appellate Courts of Illinois.
Vol. 39. J Mut. Accident Aw»'n of the Norlhwest v. Tujrgle.
Me. 251; 14 Atl. K. 13; U. S. Mut. Ace. Ass'n v. Newman, 3
S. E. Kep. 809; Trew v. Railway Co., 7 Jur. (N. S.) 878; Rey-
nolds V. Ins. Co., Law T. (N. S.) 820; Winspear v. Ace. Ins.
Co., 43 L. J. Rep. (K S.), 459; Martin v. Travelers Ins. Co.,
1 Foster & Finl." 505.
That fact, however, is expressly alleged in the declaration
and admitted by the demurrer in this case.
The provision in the policy, that benefits therennder
should not extend to any bodily injury, of which there should
be no external or visible si^n, applies only to injuries not
causing death, for which the policy provides for the payment
of weekly benefits ; and that the dead body is external and
visible sign enough in case of death. Mallory v. Travelers
Ins. Co., 47 N. Y. 52; Paul v. Travelers Ins. Co., 112 N. Y.
472; McGlinchey v. Fidelity & Casualty Co., 80 Me. 251.
In Paul V. Travelers Ins. Co., 112 K Y. 472 (20 N. E.
Rep. 347), the policy was similar to that in the case at bar, in
indemnifying against injuries caused by external, violent and
accidental means. The insured died from inhaling illuimnating
gas. He was found dead in his room, the gas being turned
on and the room being filled with gas, and he lay on his bed
like a man asleep, without any outward indications that ho
was dead, and without any external or visible signs of injury
upon his body. The company was held liable ; and see Trew v.
Railway Co., 7 Jur. (N. S.) 878; Reynolds v. Insurance Co.,
22 Law' T. (N. S.) 820; McGlinchey v. Casualty Co., 14 At).
Rep. 13.
The case of Hill v. Insurance Co., 22 Hun, 187, cited by
appellant, was that of a physician's death from drinking by
mistake water from a goblet in which was some poison. It
was held by a divided court that the injury was not effected
through external and violent means within the meaning of
similar provisions of a policy. We can not approve of the
reasoning of the court and agree with the general term opin-
ion in this case, that the rule there laid down was too strict.
In ilcGIincliey v. Casualty Co., 80 Me. 251, 14 At. Rep. 13,
the Supreme Court of Maine held similar views of construc-
tion of an accident policy, and rested among other authori-
ties upon the general term opinion in this case.
• Third District — November Term, 1890. 511
Mut. Accident Ass^n of the Northweat t. Tugs^le.
It has been held that an insane man wh o takes his own
life, dies from an injury produced by external, accidental
and violent means. Insurance Co. v. Crandall, 120 U. S. 527;
7 Supreme Court Reports, 885.
The same result follows when death ensues from accidental
drowning. Trew v. Insurance Co., 6 Hurl. & N. 845; Win-
spear V. Insurance Co., 6 Q. B. Div. 42.
Accidentally inhaling coal gas, causing death, entitles a
recovery upon a policy like the present. Paul v. Insurance
Co., 45 Hun, 313.
A death from blood poisoning, produced by virus communi-
cated to the hand by a fly, comes within the terms of such a
ix)licy. Bacon v. Association, 44 Hun, 599.
The latter case has been criticized upon the point whether
the means in that instance were violent or not.
In Insurance Co. v.'Burroughs, 69 Pa. St. 43, the court
•says : " If the injury be accidental, and the result is death,
what matters it whether the injury is caused by a blow from
a pitchfork, or a strain in handling it?" In these cases it was
held that the true cause of the death came from the outside —
were external means. Upon principle, we think, the same
decision must be reached here.
In the cases of Trew v. Assurance Co., 5 Hurlst. & N. 211,
and on appeal 6 Hurlst. & N. 839, 7 Jur. (N. S.) 878 ; Rey-
nolds V. Accidental Ins. Co., 22 L. T. (N. S.) 820, and Win-
spear v. Accident Ins. Co., 42 L. T. (N. S.) 90; 43 L. J. Kep.
(N. S.) 459, affirmed 6 Q. B. D. 42, it was held that death
from drowning was caused by external and violent means
within the meaning of an accident policy. In the Trew case,
which is the leading case, and is followed by the others, it
was argued for the defendant that " whereas, from the ac-
tion of the water there is no external injury, death by the
action of the water is not within the meaning of the policy."
To which the court reply : "That argument, if carried to
its extreme length, would apply to every case where death
was immediate. If a man fell from the top of a house or
overboard from a ship, and was killed, or if a man was
Buifocated by the smoke of a house on fire, such cases would
M2 Appellate Courts of Illinois.
Vol. 39.] Mut. Accident Ass'n of the Northwest v. Tuargle.
be excladed from the policy, and the effect would be that
policies of this kind, in many cases where death resulted
from accident, would afford no protection whatever to the
assured. We ought not to give these policies a construc-
tion which will defeat the protection of the assured in a
large number of cases." Hurlst. & N. 84:3,
In the late case of U. S. Mut. Ace. Ass'n v. Newman, in the
Court of Appeals of Virginia, 3 S. E. Rep. 809, the insured
died from inhaling coal gas. He was found dead in his bed
and the room was full of coal gas. But the court sustained a
judgment against the insurance company. There can be no
question, we submit, under these authorities, that the injuries
which occasioned the death of Charles W. Tuggle **Vere
received by or through" external and violent means within
the meaning of the policy. They establish as the ])roper con-
struction of these words in the policy, as stated by the Court
of Appeals in Paul v. Travelers Ins. Co., that '* the fact that-
a deatjj is the result of an accident, or is unnatural, imports
an external and violent agency as a cause." Gas, water, the
running away of a horse, from which b}' reason of fright or
otherwise, death results, or a deadly drug, are equally external
and violent means.
Wall, J. This was an action of assumpsit upon a certif-
icate of membership in the defendant company.
A demurrer io the declaration was overruled and the
defendant not answering further, judgment was rendered for
85,000.
The first point made is, that by the terms of the certificate
there was not an absolute promise to pay f5,000, or any
definite amount, but to ]my the sum of $2 for each member
of division A of the association, which sum was not to ex-
ceed $5,000. The demurrer was general, no specific objection
being pointed out. The declaration set out the certificate in
hcec verba and averred the death of the assured, etc., and
alleged that by reason of the premises, the plaintiff was enti-
tled to receive said sum of $5,000, but did not allege that
division A contained any particular number of members.
Third District — November Term, 1890. 513
. !
Mut. Accident A88*n of the Northwe$t v. Tuggle.
The objection was one that might have been obviated by
amendment.
Wliether such a defect might have been reached by special
demurrer only at the common law, we are of opinion that
under the operation of Sec. 24 of the Practice Act, and in anal-
ogy to the liberal policy there indicated, it could not be reached
by general demurrer, and that a defendant seeking to raise a
point so easily met by amendment should be required to specif-
ically state it That provision of the Practice Act has worked
a radical change in our procedure and has enlarged the scope
of matters which should be specially set out as gi'ound of
demurrer.
It is said in the brief of appellee that npon the argument
of the demurrer in the Circuit Court no allusion was made to
this objection and that it is presented in this court for the
first time. Counsel for appellant do not controvert this
statement and we assume that they can not.
While we must be guided by the record and not by asser-
tions of fact in the briefs, we are impressed with the injustice
of considering a point possibly not urged in the Circuit Court
which does not go to the merits of the cause of action but
only to the amount claimed, and which, had it been important
as affecting the sum for which defendant was liable, could have
been so readily obviated. The damages were assessed by a
jury, counsel for defendant being present making some
objections to the admission of evidence and cross-examining
the plaintiff, who appeared as a witness. Nowhere in the
proceedings do we find any suggestion in this respect. We
think it can not be considered now.
As was said in I. & St. L. E. R Co. v. Estos, 96 111. 474,
" a case ought not to be reversed in this court on a question
which the Circuit Conrt did not in fact decide, and which, if
presented to that court, might at once have been obviated."
See also as analogous, Tomlinson v. Earnshaw, 112 111. 311,
and Utter v. Jaffray, 112 III. 470.
The main controversy in the case and npon which the
rights of the parties really depend is, whether the facts
alleged as to the manner whereby the assured lost his life, fix
Yof. XXXIX 33
514 Appellate Courts of Illinois.
Vol. 39.] Rowland v. Swope.
liability upon the defendant. It is averred in substance that
by accident tlie assured took an overdose, or excessive quantity
of laudanum which caused his death. The certificate limits
liability to " injuries received by or through external, violent
and accidental means,'' and it is contended on behalf of the
company that such a case is not made by the allegation of ac-
cidentally taking poison.
In the case of Healey against this company, 133 111. 656,
the Supreme Court held that death so caused was within
the spirit of the policy and that the company was liable, pre-
cisely the same provision being under consideration.
Counsel urge, however, that the court overlooked another
clause in the policy exempting the company from liability in
case of " the taking of poison in any manner.'' It is true this
clause is not discussed in the opinion, but we are not to asenme
that it was overlooked or that the proper construction of it
should modify the views expressed.
"We feel bound to follow the ruling of the Supreme Court
The judgment will be affirmed.
JudgTnent affirmed.
Blenden L. Rowland et al.
V.
Homer M. Swope, Administrator.
Admhiistrafion — Debts — Petition to Sell Land for Payment of-^Stc»
98 f Chap. 3f R. S,
1. Before a CouDty Court can order the sale of a dececlent*R land for the
purpose of paying debts, it must ascertain that the personal estate left by
the decedent, and which has or should come to the hands of the executor or
administrator, is insufficient to pay them.
2. Heirs are not to be held as sureties for the faithful performance by
an administrator of his duties, nor are their rights dependent upon his integ-
rity or negligence.
4. The real estate of a deceased person should not be ordered sold by
the County Court for the payment of debts, where it appears there baa been
Third District — November Term, 1890. 615
Rowland v. Swope.
a Rafficiency of personal assets to pay the same, but that they have been
wasted by the administrator or executor, and never applied to such pay-
ment
[Opinion filed January 24, 1891.]
In ERROR to the Circuit Court of Adams County; the Hon.
"William Marsh, Judge, presiding.
Messrs. W, L. & K. E. Vandevbntbb, for plaintiflFs in
error.
Messrs. McMurbay & Swope, for defendant, in error.
Conger, P. J. This was a petition filed in the County
Court of Adams County by Homer M. Swope, administrator
de bonis non of the estate of Samuel Brierton, deceased, for
the purpose of obtaining a deci-ee for the sale of lands to
pay debts. Samuel Brierton departed this life testate, Sep-
tember 9, 1885, and by his will appointed his son, Henry E.
Brierton, his executor, without bond.
The executor, Henry E. Brierton, collected money due said
testator to the amount of some S700 for which he became
legally accountable as such executor, and which personal
assets were more than sufficient to pay all the claims against the
said estate.
Such executor, however, squandered these assets, and after
failing to make reports satisfactory to the County Court, on
April 1, 1889, absconded from the State, leaving no property.
On April 24, 1889, said executor was removed by the County
Court and appellee was duly appointed administrator de bonis
non with the will annexed.
Henry E. Brierton by his father's will was the devisee of
some of the land of his father, which he had sold and con-
veyed to Rowland and Wainman, and they having been made
parties to the proceeding, objected to its being sold.
The principal question, therefore, presented by the record
is, can the real estate of a deceased person be sold by order of
the County Court, for the payment of debts, where it appears
516 Appellate Courts of Illinois-
Vol. 39.] Rowland v. Swope.
there lias been a sufficiency of personajl assets to pay siich
debts, although they may have been wasted by the adminis-
trator or executor, and never in fact applied to the payment
of debts?
This precise question, so far as we are advised, has not
been passed upon by the Supremd Court of this State.
The case of Young v. Wittenmyre, 123 111. 303, lays down
the general rule that where there is personal estate sufficient
to pay all debts, the land can not be sold; still, as the admin-
istratrix who petitioned for the sale was herself in fault in
paying out the personalty to heirs instead of paying it upon
the debts, it perhaps may not be regarded as an authority
upon the question in this case.
The authority for selling land to pay debts is to be found in
Sec. 98 bf Chap. 3, K. S., and is as follows:
" When the executor or administrator has made a just and
true account of the personal estate and debts to the County
Court, and it is ascertained that the personal estate of a
decedent is insufficient to pay the just claims against his
estate, * * * the real estate may be sold," etc.
We hold that this section means, that before the County
Court can order the sale of a decedent's land for the purpose
of paying debts, it must ascertain that the personal estate is
insufficient to pay them; that is, the personal estate left by
the decedent, and which has or should come to the hands of
the executor or administrator.
It is not enough for the court to find that there has been a
sufficiency of personal assets left by the decedent, but at the
time of filing the petition such assets have been wasted either
by the petitioning administrator or executor, or by their prede-
cessors in office. The heirs are not to be held as sureties
for the faithful performance by the administrator of his
duties, nor should their right be dependent upon his integrity
or negligence.
The personal estate is the primary fund for the payment
of debts, and only after applying it to their discharge, and
there remains a deficiency, does the land become liable.
There is a conflict in the decbions of other States upon this
Third District — November Term, 1890. 517
^ ■ ' ' ' ■ '■
Phenix Ins. Co. v. Hart.
question, the following supporting, in part at least, the
view we have taken : Pry's Appeal, 8 Watts, 253 ; Kelly's
Estate, 11 Phil. 100; Wise v. Smith, 4 Gill & Johnson,
295; Bennett v. Caldwell, 3 Bax. (Tonn.), 487; Paine,
Adm'r, v. Pendleton et al., 32 Miss. 320; while the following
seem to hold the contrary doctrine : Nettleton v. Dizon, 2
Ind. 446; Foltz v. West, 103 Ind. 494; Fiscess v. Moore (Ind.),
23 N. E. Eep. 864.
We think, however, sound reason, as well as the language
of our statute, is consistent with the views we have expressed.
The court, we think, erred in granting the decree of sale
under the circumstances as shown by the record, and its
decree will therefore be reversed and the cause remanded.
Heversed and remanded.
The Phenix InsuraI^ce Company
Solomon Hart.
Fire Insurance — Policy qf— Action on — Conditions — Incumbrance — Sec*
>i3. Chap. 75. R. S.
1. An insurance agent is a proper source of information as to the prac-
tice of his company, and it is bound by the statements of such agent,
whatever department of its business he has in charge.
2. The placing of a mortgage upon a tract of land other than that upon
which a house stands, will not vitiate a policy of insurance on such house,
a provision therein prohibiting incumbrances without permission, although
the policy refers to it as standing upon the aggregate number of acres.
■
[Opinion filed January 24, 1891.]
Appeal from the Circuit Court of Morgan County; the
Hon. Cyrus Epler, Judge, presiding.
Mr. John A. Bellatti, for appellant
Messrs. Morrison & "Whitlook, for appellee.
518 Appellate Courts of Illinois.
Vol. 89.] Phenix Ins. Co. v. Hart.
Conger, P. J. On the 30th day of September. 1S86, a
policy of insurance was issued by appellant to appellee on the
latter's house, situated upon one hundred acres in section 28^
town 13, range 9, Morgan County, for a period of five jears.
The house was destroyed by fire September 28, 1889.
One of the conditions of the policy was, ** or if the property
shall hereafter become mortgaged or incumbered . * * *
without consent indorsed thereon, then in each and every one
of the above cases this policy shall be null and void. No a^ent
or employe of this company, or any other person or persons,
have power or authority to waive or alter any of the terms
or conditions of this policy, except only the general agent at
Chicago, Illinois, and any waiver or alteration by him mast
be in writing." On November 2, 1887, Mr. Burch, general
agent, indorsed on the policy permit for a mortgage on the
premises of $2,000 to Elia^ Metcalf. This mortgage was
given and no complaint is made about it.
Some three or four weeks prior to the making of this
mortgage to Metcalf, appellee had executed a mortgage on
sixty acres of the one hundred described in the policy, bat
not including the forty acres upon which the house stood, to
one Layman.
It is the making of this Layman mortgage that is the prin-
cipal cause of complaint.
There was a trial and verdict in favor of appellee for
$2,826, whereupon appellee remitted $826, and judgment was
entered for $2,000.
Appellee testifies that he employed Mr. TJpham, the local
agent of the appellant company at Jacksonville, to procure
for him the loan from Metcalf; that he brought his insurance
policies to Mr. Upham and told him to send them in to the
company and obtain permission to borrow the money; he also
told the agent at this time that he was giving a mortgage
upon the forty acres upon which the house stood to Metcalf,
and that he had already placed the mortgage upon the other
sixty acres of the one hundred mentioned in the policy to Lay-
man, and asked Upham if it would be necessary for any permit
from the company for this Layman mortgage, and Mr. Upham
Third District — November Term, 1890. 519
Phenix Ins. Co> v. Hart.
answered that it would not; that a permit was only necessary
when it was proposed placing a mortgage upon the forty acres
upon which the house stood; and appellee says, relying upon
this statement of Mr. Upham, he made no further effort to
secure a permit for the Lyman mortgage.
Ihese statements are denied by Upliam, bnt the jury having
found a verdict in accordance with appellee's statement, we
see no reason for interfering with their conclusion as to the
facts.
Mr. Upham says that he is the local agent of appellant at
Jacksonville and has been since 1873; that he is agent for
what is called the mercantile department, but had nothing to
do with the farm department of the company. He sent the
policies in to the company to get the premiums to make the
Metcalf mortgage.
Appellant is a foreign insurance company and we are
inclined to think is bound by the knowledge and acts of
Upham as its agent.
In construing Sec 23 of Chap. 72 R. S., entitled, " Inpur-
ance," the Supreme Court in the case of Continental Ins. Co.
V. Knckman, 127 111. 364, use the following language :
^^The manifest intention was to make such companies re-
sponsible for the acts not only of its acknowledged agents, etc.,
but also of all other persons who in any manner aid in tiie
transaction of their insurance business. Nor do we see any-
thing inequitable or oppressive in such provision. Doubtless
the mere assumption of authority to [^ct for an insurance com-
pany will not of itself charge the company with responsibility
for the acts of the assumed agent. Tlie company must in
some way avail itself of such acts, so that the person perform-
ing them may be said to aid the company in its insurance
business."
Upham certainly aided in the transaction of appellant's busi-
ness, and was its local representative, and the fact that the
company had a mercantile and farming department is of no
consequence in this case. Appellee was authorized to apply
to Upham for information and the company would be bound
by the statement made by him to appellee.
520 Appellate Courts of Illinols.
Vol. 39.] Phenix Ins. Co. v. Hart.
We are inclined to think also that the placing of the Lay-
man mortgage upon the sixty acres of land was -not sucli a
violation of the terms of the policy as would render it void.
The application and the policy, it is true, described the
lioiise as situate upon one hundred acres of land, which, as we
understand the evidence, included a distinct forty acres upon
which the house was located, and upon which the Metealf
mortgage was placed, and an adjoining and independent tract
of sixty acres upon which the Layman mortgage was placed*
The Layman mortgage was not an incumbrance upon the
house, and did not in any way afifect the risk; appellee's inter-
est in protecting and preserving the house was in no way
lessened by the mortgage. No authorities have been cited
\i\you this question, and its decision is one of Urst impressions
with us, but it appears to be in accordance with reason and
common sense.
An insurance company has an interest in preventing tho
building, and with it tlie lot or tract of ground upon which it is
situate, from being incumbered, or the insured's interest being
decreased, but it can be of no possible interest to such com-
pany what is done with an adjoining tract of land belonginnr
to the insured which may happen to be included in the general
description of the premises in the policy, unless it is so situ-
ated or connected with the lot upon which the insured premises
stand, as to affect the value or usefulness of the latter.
That is clearly not the case here. Believing that justice
has been done, the judgment of the Circuit Court will be
affirmed.
Judgment ajinned.
Third District — November Term, 1890. 521
Windels v. Milwaukee Harvester Co.
Fred H. Windels
V.
Milwaukee Harvester Company.
Guaranty — Notes — Payment of ^Consideration — Agency •
In an action brought to recover upon the guaranty of certain promissory
notes, this court holds that in view of a contract between the parties
hereto, calling for the indorsement by defendant of certain elapses of notes
received in a given business, the liability was a continuing one, and
required such indorsement, when the contingency provided for arose, and
th;it the contention upon the part of the defendant that the guaranty in
question was a subsequent transaction, and was obtained without any new
consideration, can not avail him.
[Opinion filed January 24, 1891.]
Appeal from the Circuit Court of Montgomery County;
the Hon. Jacob Foukb, Judge, presiding.
Mr. G. L. ZiNK, for appellant
Messrs. MoWilliams & Son, for appellee.
"Wall, J. This was assumpsit uix)n a guaranty of certain
promissory notes. The case was tried by the court, a jury
being waived, and judgment was rendered in favor of the
plaintiff for $354, from which the defendant has prosecuted
an appeal to this court.
The only question of importance is as to a consideration for
the guaranty, which was placed on the notes several months
after they were executed to the makers thereof. Appellant
insists that the guaranty was a subsequent transaction and was
obtained without any new consideration. Hence, it is argued
the guaranty does not bind him.
It appears that appellant was the agent of appellee, the scope
of the agency being the sale of machinery manufactured by
appellee to persons living within certain territory within
which appellant resided. This agency was evidenced by a
written agreement, which, among other things, authorised the
522 Appellate Courts of Illtnots.
Vol. 39.] Windela v. Milwaukee Harvester Co.
Bale of machinery on credit to responsible parties nnder cer-
tain conditions, which need not be specifically stated in full,
and which provided that when any note taken by appellant
for property so sold, was not accompanied by a " property state-
ment," or by a chattel mortgage, or should upon examinatiou
prove doubtful, it should be indorsed by him.
The notes in question were taken in this way, and some
months after their dates, appellant had a settlement with tlie
general agent of appellee, in which they were turned over to
the appellee as so much money, and appellant was credited with
his commissions for making these and other sales. At the
time of this settlement these notes, which were not secured
by chattel mortgage, but which were accompanied by "property
statements," were presented to appellant for his indorsement,
and he thereupon indorsed them, writing his name below the
printed form of guaranty on each one. The liability to do
this was expressly provided for in the contract of agency,
where it was stipulated that where any pote should upon
examination prove doubtful, he would indoi-se it.
The liability was a continuing one and required his action
whenever the contingency arose. The mere fact of tlie pre-
sentation of the notes to him for that purpose and his
immediate act of indorsing would clearly indicate that both
parties considered the case within the contingency. Appellant
acquiesced in the proposition tacitly advanced by appellee that
the notes were such as he was bound under the contract to
indorse. There is nothing in the record to show the con-
trary, and for all that appears these notes were not only
doubtful but utterly worthless.
Having by his conduct admitted that he was required to
indorse the notes under the contract, and the appellee having
under such circumstances taken the guaranty from him, and
presumably having relied upon his personal responsibility
therefor, it may well be doubted whether he could be per-
mitted long afterward to show that the notes were not then
doubtful.
Dpon the case as it appears in the record the judgment is
certainly right and it will be affirmed.
Judgment affirmed.
Third District — November Term, 1890. 523
' ,
Timmernian v. Pusey.
Elizabeth Timmerman
V.
Nathan T. Pusey.
AUorney and Client — Services Rendered — Beeovery for — Evidence-^
Instructions.
This court declines, in view of the evidence, to inferfpre with the judg-
ment for the plaintiff in an action brought by an attorney to recover fees
for services rendered.
[Opinion filed January 24, 1891.]
Appeal from the Circuit Court of McLean County; the
Hon. A. Sample, Judge, presiding.
Mr. Fbank R. Henderson, for appellant.
Mr. B. C. LuoAs, for appellee.
"Wall, J. This was an action of assumpsit by appellee
against appellant to recover for legal services, resulting in a
verdict and judgment thereon in favor of the plaintiff for
$150. The main question in tlie case was, whether the
services were pursuant to the request of the defendant.
On this point the proof though not free from conflict
sufllciently supports the verdict As to the value of the
service there is no serious question.
The court gave three instructions at the instance of the
plaintiff, in which the legal rules applicable from the stand-
point of the plaintiff's testimony were correctly stated.
Three instructions were given at the instance of the defend-
ant, two of them being somewhat modified. We think the
modifications were not eiToneous. Two instructions were
refused.
As to one of them, so much of it as was essential was con*
tained in the third giveu, and as to the other, there was not
524 Appellate Courts op Illinois.
Vol. 39.] Dwelling House Ins. Co, v. Downey.
enough evidence upon which to predicate it, or at most to
require it to be given. We can not see that the case of tlie
defendant was prejudiced by the action of the court in refer-
ence to the instructions, and we are inch'ned to think that the
judgment is according to the merits.
It will therefore be affirmed.
Judgment affiimiedL
39 524 Dwelling House Insurance Company
a» 488
V.
M. L. Downey.
NfgotiahJe Instruments — "Sote — Execution (if— Fraud and Circumven'
tion in Obtaining — Application for Insurance,
In view of the evidence, this court aflSrms the judgment for the defend-
ant in an action brotight by an insurance company to recover upon a note
alleged to have been given by him in payment of the premium on one of
its policies, the defendant contending that its execution was procured
through circumvention and fraud, he supposing he was sisriiing an applica-
tion for insurance, instead of a note.
[Opinion filed January 24, 1891.]
Appeal from the Circuit Court of Moultrie County; the
Hon. J. F. Hughes, Judge, presiding.
Mr. I. D. Walkbe, for appellant.
Messrs. Eden & Cochean, for appellee.
Conger, P. J. This was an action upon a note for $82,
claimed to have been given by appellee to the appellant in
payment for a policy of insurance on the dwelh'ng house of
appellee. Verdict and judgment below for appellee.
The defense was fraud and circumvention in obtaining the
execution of the note. Upon this question there was a sharp
Third District — November Term, 1890. 625
Dwelling House Ins. Co. v. Downey.
couJnt in the evidence. According to appellee's evidence,
Watkins and Nichols, who were representing appellant, came
to his home and spent the night with him. Watkins intro-
duced Nichols as the agent of appellant, and that evening
wrote up an application, at the bottom of which was the blank
which, when afterward filled up, formed the note in contro-
versy. Appellee claims that the amount of insurance was to
be $2,050, and ho was to give liis note in payment therefor
fur §62 and some cents; that appellant's agent also induced
liim to believe that a policy he, appellee, then held on his
home in another company was worthless, and that such pol-
icy was given up; that he signed what he supposed was the
apph'cation, but which was in fact the blank note at the bot-
tom of the,application, and which was afterward filled up as
the note in suit, without the knowledge or consent of appel-
lee. Tlie policy was afterward sent to appellee, and was for
81,650, instead of $2,650, whereupon appellee returned it.
This statement, in many of its parts, was denied by Nichols
and Watkins, but the jury have given credence to appellee's
version, and after a careful examination of the record we can
not say they are unwarranted in so doing. Taking appellee's
statement as true, we think the defense was made out.
Whatever might be the rights of a honafide assignee before
maturity, as between the original parties the execution of the
note was procured by fraud. Appellee had no intention of
signing any note whatever, bnt supposed he was merely sign-
ing the application.
From the circumstances it is clear that appellant's agent
knew this, and when he afterward made a note above appel-
lee's signature it was, we think, such a fraud as would vitiate
the note in the hands of appellant
The judgment of the Circuit Court will be afllrmed.
Judgment affirmed.
526 Appellate Courts of Illinois.
Vol. 39.] Wilbur v. Turner.
S. H. Wilbur
V.
W. C. Turner.
Praetice-^Tort of Constable — Aiding Unlawful Act hy*
L Whether or not certain facts in evidence in a given case cons£i(nted
" aid '' in a legal senue, to a person in the doing of an alleged tort, is for
the jury to decide.
2. In an action brought to recover from the defendant for aiding a
constable in wrongfully removing personal property of the plaintiff, the
same never having been returned, this court declines, in view of the evi-
dence, to interfere with the judgment in his behalf.
[Opinion filed January 24, 1891.]
Appeal from the Circuit Court of Sangamon County; the
Hon. J. A. Cbeiqhton, Judge, presiding.
Messrs. Conkling & Grout and J. C. Snigg, for appel-
lant.
Messrs. Patton & Hamilton, for appellee.
Per Curiam, Appellee was the owner of two horses
which one Charles H. Tipton, a constable, took away from his
premises, and appellee never saw them again. No legal justi-
fication was offered for such taking. Appellant was sued for
having aided Tipton in this wrong done to appellee, and upon
the trial a jury returned a verdict against appellant for $325,
upon which judt^ment was rendered. The whole contro-
versy was as to whether appellant by his acts in the premises
had ^made himself liable to appellee for the unlawful taking.
We have carefully read the evidence and think it clearly
warranted the verdict.
Appellant criticizes appellee's instructions because the
words, " aided, abetted and assisted," as used in the instruc-
tions; were not qualified by the court, and referring to cer-
Third Distbict — Novembes Term, 1890. 527
Razor v. Razor.
tain facts proved, asks: *'Do such acts constitute " aid "
in a legal sense, to Tipton, in the doing of the alleged tort ? "
Whether they did or not was a question of fact for the
jury.
We think the objection untenable and the judgment of the
Circuit Court will be affirmed.
Judgment affirmed.
Frederick Razor
V.
Gertrude B. Razor.
Husband and Wife — Written Contract — Parol Agreements-Evidence —
Instructions.
1. Supposed 'errors in instnictions should be pointed out specifically , and
not referred to in general terms.
2. A person may prove the existence of a separate oral agreement as to
matters upon which a written contract is silent, and which is not inconsist-
ent therewith, if it can be inferred that the parties did not intend the
writing to be a complete and final statement of a given transaction, and
this rule applies to parol agreements as to how a written contract is to be
performed.
3. In an action brought by a married woman upon a written contract
executed by her husband, and certain parol provisions not contained therein,
the substance being an agreement upon the part of the husband, in consid-
eration of the wife signing a deed of conveyance of .their home, to invest in
her name the proceeds of the sale thereof in another house in a different
place, this court holds that the plaintiff's existing interest in the property
being sold by her, formed the consideration for the undertaking upon the
part of the defendant to furnish the other house; that it was a good and
sufficient consideration to support the agreement; and declines to interfere
with the judgment for the plaintiff.
[Opinion filed June 12, 1891.]
Appeal from the Circuit Court of McLean County; the
Hon. A. Sample, Judge, presiding.
; 39 527
149s 621
528 Appellate Courts of Illinois.
Vol. 39.] Razor v. Razor.
Messi'8. John E. Pollock, John Staplkton and A. J. Baur^
for appellant.
Mr. Frank R. Henderson, for appellee.
Conger, P. J. This was an action of assumpsit and attach-
ment brought by appellee against appellant, her husband,
based upon a written contract and certain other parol prov^is-
ions not contained in the writing.
The writing was as follows :
" Le Roy, Illinois, January 18, 1890.
" I, Fred. Razor, of Le Roy, 111., do agree to and with my
wife, Gertrude Razor, that in consideration of her signing a
deed of conveyance to our home place (being lot 2 of lot 7
of the subdivision of the southwest quarter of the southeast
quarter of Sec. 21, T. 22 K, R. 4 E,, in Le Roy, McLean Co.,
111.), this day executed, I do hereby agree to invest the pro-
ceeds of said sale in a house in Bloomington, 111., and have
the same deeded to said Gertrude B. Razor, to be owned by
her.
his
Fred, x Razor."
"Witness: A. Rctledge. mark
The general issue was pleaded, and there was an agi-eement
hat anything might be proved thereunder that might be
shown under any proper, special plea.
The trial resulted in a verdict and judgment for $2,000 in
favor of appellee.
The first point made by appellant is that " the court per-
mitted appellee to prove an additional agreement to the one
sued on, that was claimed to have been in parol.*' This
objection is based upon the following evidence given on tlie
trial by appellee :
Q. What was the agreement as between you and your
husband as to who should select the property, that this agree-
ment provides should be purchased for you, if any agree-
ment of that kind was made ?
Objected to.
Third District — November Term, 1890. 529
Razor v. Rrzof.
The Court: "The agreement is silent npon the qnestion, in
view of the fact I will permit the witness to testify."
To which ruling of the court defendant then and there
excepted.
A. " He told me I should select the house."
Q. "As between yon and him, what is the agreement as to
whether or not the proceeds should be cash ? "
Objected to; objection overruled; and defendant then and
there excepted.
A. "It was to be cash. After the deed and agreement
were signed I came to Bloomington after we packed up the
goods; came the 21st of Janimry."
We think there was no error in the ruling of the court
upon this point.
Tlie written agreement has no provision bearing upon or
referring to these questions. They are botli matters about
which a parol agreement might be entered into by the parties,
which would in no way be inconsistent with the terms and
provisions of the writing.
In 2 Wharton on Ev., Sec. 1026, it is said : " A party is at
liberty to prove the existence of any separate, oral agreement
as to any matter on which a document is silent, and which is
not inconsistent with its terms, if from the circumstances of
the case the court infers that the parties did not intend tlie
document to be a complete and final statement of the whole
of the transactions between them." This rule also applies to
parol agreements as to how a written contract is to be per-
formed.
It is next urged that the agreement sued upon was obtained
by fraud and circumvention.
The jury found against appellant upon this issue, and we see
nothing in the evidence which would justify a reversal upon
that ground.
It is contended tlie court erred in refusing to permit appel-
lant to offer evidence tending to show that appellee had been
guilty of adultery since her marriage to appellant
Appellant insists upon his right to do this, because prior to
his marriage with appellee he had executed to her a deed for
Toi. XXXIX 34
630 Appellate Courts op Illinofs.
Vol. 39.] I. C. R. R. Co. v. Liprht
the Le Roj property mentioned in the written agreement, and
which deed contained the following clause : " It is agreed
by and between the grantor and grantee that the said Ger-
trude Gibbs shall marry and shall live as thoi lawful wife of
said Frederick Eazor, and when she ceases to live as his wife
the property herein described shall revert to the grantor, or
to the heirs of his body."
It is not necessary to determine the proper construction of
this condition.
Appellee's existing interest in the property, whatever it
was, was sold by her, and formed the consideration for tho
undertaking upon the part of appellant to furnish another
house in Bloomington, and it was a good and sufficient consid-
eration to support the agreement.
Counsel for appellant in their brief, say :
*' The court refused a large number of instructions offered
by defendant (appellant) and gave instructions for the plaintiff
(appellee), to both of which we desire especially to call the
attention of the court. A large number, or at least some, of
the defendant's refused instructions should have been given,
and probably several of the plaintiff's instructions should not
have been given."
These supposed errors in the instructions have not been
pointed out with any more particularity than in the above
extract from appellant's brief, and we have neither the time
nor inclination to search for them.
A majority of this court think substantial justice has been
done, and the judgment of the Circuit Court will be affirmed.
Judgment affii^ned.
Illinois Central Railroad Company
V.
Israel H. Light.
Railroads — Negligence of -^Injury to Animal in Car.
Whether or not the death of an animal, while being transported hf a
Third District — November Term, 1890. 531
I. C. R. R. Co. V. Light.
carrier, arose through the negligence thereof, is a question of fact for the
jury.
[Opinion filed Jnne 12, 1891.]
Appeal from the Circuit Court of McLean County; the
Hon. A. Sample, Judge, presiding.
Messrs, Williams & Capen, for appellant.
Mr. Thomas F. Tipton, for appellee.
Wall, J. The main question in this case was one of fact,
whether the animal was thrown down in the car and injured
by the negligent manner of moving the car. As to this the
evidence was conflicting.
It is quite certain that the animal was killed by reason of
some unusual and violent means, and it was a fair question
for the jury whether the result was due to negligence as
alleged.
While some of the witnesses testifv the car was handled
carefully, and that there was no sudden starting or jerking,
others testify just the contrary and clearly support the plaint-
iff's theory.
We are unable to say that the Circuit Court erred in re-
fusing a new trial on this ground.
The second instruction given at the instance of the plaint-
iff is not objectionable in the particular suggested, that it
does not limit the plaintiff to the case alleged in the declara-
tion. Nor was there error in refusing the last instruction
asked by defendant, as the substance of it and the point it
presents may be found well stated in others that were given.
On the whole case there is no apparent error sufficient
to call for the interference of this court The judgment will
be affii-med.
JvdgraeTvt affirmed.
532 Appellate Courts of Illinois.
Vol. 39.] Truesdale Mfg. Co. v. Hoyle.
Tetjesdale Manufacturing Company
V.
W. F. Hoyle.
Contracts — Ba lance Due — Payment — Set-off-— Evidence — Instructions — '
Practice — Damages for Delay,
•
L "Where no time is fixed, the law will imply that material for a given
purpose is to be furnished within a reasonable time, which will vary with
circumstances.
2. Where a person so agreeing to furnish, knows that the purchaser is
required to complete a given contract within a certain time, he contracts
with this fact in view, and takes the risk of delay arising from the pressure
of other engagements and from possible failure to obtain certain articles
necessary to enable him to so furnish.
3. It is proper in an action brought to recover an amount alleged
to be due from a contractor, where the latter contends that he has
been injured through delay in furnishing the goods in question, to allow
such contractor to show that certain subcontractors have collected from him
by suit damages for delays caused them in the performance of their con-
tracts; such judgments are not conclusive as against those who were not par-
ties to it, but they tend to show the damage as claimed by such contractor.
4. A witness should not be interrogated upon cross-examination as to a
matter upon which a party in interest bases no claim, or one which calls for
an argumentative reply.
5. It is proper upon calling a party to a suit as a witness to require him
to state and produce letters and telegrams in his possession received from
the party calling him, the same relating to the subject in controversy, with-
out serving notice, or a subpoBua duces tecum specifying what papers are
wanted.
6. Evidence as to directions given by a contractor as to pushing a cer-
tain work may be admitted in a given case, where the same had reference
to the methods adopted as to the work in hand.
7. The leading facts of a case should be presented hypothetical ly before
asking an expert witness how much loss of time would be caused by
mechanics changing from one kind of work to another.
8. Where the pleas in a given case do not deny the plaintiff*8 cause of
action, but allege payment and set-off as a defense, the burden of proof
is thrown upon the defendant and gives him the riffht to begin and con-
clude.
[Opinion filed June 12, 1S91.]
Third Distbict — November Term, 1890. 633
Truesdale Mfg. Co. v. Hoyle.
Appeal from the Circuit Court of Logan County; the
Hon. Cyrus Eplek, Judge, presiding.
Messrs. Worthington, Page & Beady and Beaoh & Hod-
HBTT, for appellant.
Messrs. Blinn & Hoblit, for appellee.
Wall, J. Appellant sued appellee to recover a balance of
$1,114.06, alleged to be due on account for certain, "mill work"
furnished under contract. Against this balance appellee
filed pleas of payment and set-off on account of certain items
of sundries, freight bills and drayage, aggregating about $255,
and for damages caused by delay in furnishing said mill work.
The case was tried by jury resulting in a verdict in favor of
appellee for $466.99, from which $200 was remitted. Judg-
ment was rendered for $266.99 against appellant, to reverse
which this appeal is prosecuted. It appears that about April 1,
1889, appellee took the contract to erect a public school build-
ing at Carrollton by September 15th, following, for the sum
of $35,000, and that he then met Mr. Truesdale, president of
appellant corporation (located at Peoria), who was seeking to
f uf nish the mill work, being the wood work, flooring excepted,
required for the building. They had some conversation then,
and a few days later they met again at Lincoln but no con-
tract was entered into. Afterward the following correspond-
ence passed between the parties :
" Lincoln, III., April 16, 1889.
Truesdale & Co.,
Dear Sirs: I promised to come over to see you about
the mill work for the Carrollton school house, but I can't
spare time. Will you please send me your lowest figures
without the glass? Also with the glass all set, and the
stairs put up complete, as I have bids that way, o. b. c. at
Carrollton, 111., with the frames put together ? Please let me
hear soon as I want to let it.
Eespectfully yours,
Wm. F. Hoyle."
634 Appellate Courts of Illinois.
Vol. 89.] Truesdale Mfg. Co, v. Hoyle.
— — -- — - — ~
" Peoeia, III., April 19, 18S9.
W. F. HoTLB, Esq., Lincoln, 111.,
Dear Sir: We will furnish f. o. b. cars at Carroll ton,
111., the following mill work for school house, for the sum of
$2,940. All outside and inside door frames. All outside and
inside window frames. All doors for same. All windovrs
for same glazed and transoms glazed. All subjams, stools and
castings for windows. All casings and carpet strips for doors.
All wainscot cap and blackboard band. All picture moulds
and quarter rounds. AH casings for four posts. All grilles,
beams and brackets. All steps and partition caps in base-
ment. All stairs and steps with posts and railings. All
wood cornice for round tower. We will put up the stairs
and rails and prime and oil all outside frames. All work to
be according to F. S. Allen's plans and specifications. Pay-
ments to be made monthly as work is delivered.
Very truly yours,
Teuesdale Manufaotuking Co.,
F. B. Teuesdale."
"Lincoln, III., May 3, 1889.
*' Teuesdale & Co.
^'Dear Sir: — You can go ahead and get out the mill work
for the Carrollton school house. The brick mason will want
the basement frames in about ten days. Make and ship them
as soon as possible and oblige
" Yours truly,
" Wm. R Hotlb."
" Peoeia, III., May 4, 1889,
*' W. F. HoTLE, Esq., Lincoln, 111.
" Dear Sir: — Your favor of the third at hand and noted.
We have entered your order and will have the frames ready
in time. We have written to Mr. Allen to-day to send us a
copy of the plans and we will be unable to do anything with-
out them,
"Very truly yours,
" Teuesdale Manupactueing Co.
" F. B, Truesdale."
The building was not completed so far as to be occupied
Third District — November Term, 1890. 535
Truesdale Mfg. Co. v. Hoyle.
until about the 25th of January, 1890. This delay was caused,
as alleged by appellee, by the failure of appellant to furnish
the mill work as required, and it was claimed by appellee that
he was greatly damaged by such failure of appellant and the
consequent delay. Upon llie question of this damage aud the
responsibility of appellant therefor there was a large amount
of testimony.
After carefully reading the abstract and referring fre-
quently to the I'ecord, we are inclined to tliink the evi-
dence so fully justified the verdict as it stood after the
remittitur^ that we can not properly interfere with the judg-
ment upon the questions of fact involved. The printed argu-
ments of counsel go very thoroughly into this branch of the
case and have received attentive consideration. It would be
impossible within I'casonable limits, to advert in detail to the
testimony, and we shall be content with this reference to it,
and our conclusion upon it.
We shall therefore consider next the legal questions raised
by counsel upon the action of the court in admitting and
excluding testimony and in giving and refusing instructions.
The four letters above set out constituted the contract
between these parties. It was so averred in the first count of
the declaration, copies of the letters being attached and
designated as "copy of the instrument sued on." It was not
denied that tlie work was furnished and that the balance sued
for was unpaid, except as to certain credits for freight charges
and sundries furnished by appellee, about which there was no
substantial controversy.
The main dispute was as to the damages for delay. It will
be noticed that no time was fixed within which the work was
to be furnished except as to the basement frames which were
wanted in about ten days from May 3d, and the law would
imply a reasonable time. What tliat was might vary with
circumstances. Appellant knew, as the evidence tends to
prove, that appellee was required to complete the building by
a certain time and must have known that the profitable per-
formance of the contract depended greatly upon a regular and
systematic supply of all materials to be furnished by sub-
636 Appellate Courts of Illinois.
Vol. 39.1 "^ Truesdale Mfg. Co. v. Hoyle.
contractoi-s, so that no part of the work should wait upon
another. Appellant must be held to have contracted with
this fact in view, and it took the risk of delay arising from
the pressure of other engagements, which was one excuse
oflEe'red, and from possible failure to obtain articles, such for
instance as glass, necessary to complete its work, the want of
which was set up as another excuse for the delay com-
plained of.
Another excuse urged was that the architect, Allen, did not
furnish the plans promptly, and it is insisted that such neglect
of Allen should exonerate appellant for any delay thereby
occasioned. The contract did not so provide; indeed it dis-
tinctly implied the contrary. The proper construction of it
placed this risk upon appellant, and this is in accordance witli
the verbal discussion of the matter between the parties before
any of the letters referred to were written.
As to all these points we think the court ruled properly in
regard to the evidence, and tliat as to the instructions, there is
no error of which appellant may complain. It is objected
that the court erred in permitting appellee to testify to the
fact that ho had been sued bv the stone and brick sub-con-
tractors and been compelled to pay $1,100 as damages for the
delay caused them, of which, as appellee estimated, $600 was
for the failure to furnish the window frames in time. Wo
see no objection to his making the statement. The judgment
was, of course, not conclusive as against those who were not
parties to it, but it tended to show that the appellee liad been
damaged, as he claimed. The plaintiffs in that judgment
were subsequently put on the stand as witnesses in this case,
and testified in detail as to the particulars of their demand
against appellee. Of course, the record itself was the best
evidence of what the judgment was for, and the court said
that either party might produce the record if desired, but
that was not the objection.
It was not objected that the judgment could not be so es-
tablished, but that it was not competent to show that appellee
had been subjected to a judgment, because appellant could
not be bound thereby. Of course, if appellant had been a
Third District — November Term, 1890. 537
Truesdale Mfg. Co. v. Hoyle.
party, the judgment would have been coDclu^ive and no other
proof of ap])ellee'8 damage, so far as the stone and brick
was concerned, would have been necessary. The evidence
offered by the appellee sufficiently showed that the judgment
was not larger than was proper and that there was no collu-
sion. There was no proof by appellant contradicting this
evidence.
The judgment was competent as tending to establish the
position of appellee. It was not insisted that it was conclu-
sive; on the contrary the jury were instructed that the ap-
pellee must show that , appellant had failed to furnish the
mill work within a reasonable time before he conld sustain his
claim for a set-off. The court did not err in admitting the
evidence nor in refusing to instruct the jury that it was not
to be considered bv them.
*
Had appellant thought it necessary to instruct the jury that
it was not bound by the judgment it should have asked an in-
struction to that effect, which the court would doubtless have
given.
The statement by appellee that of the judgment, $600 was
for the delay in the window frames, was technically, perhaps,
not proper, for it was merely his opinion as to how much of
the judgment was based on that item; but we can not see that
any serious harm was thereby done to appellant.
The way was open by cross-examination to demonstrate
that the estimate was erroneous, and inasmuch as the whole
subject of damages as to each item where there was delay
was fully and thoroughly investigated, it can not be supposed
the jury took this mere estimate as conclusive and omitted
to consider the facts in proof upon which it was predicated.
For such an error the judgment should not be reversed.
It is complained that the court refused to permit the fol-
lowing question to be asked of appellee on cross-examination:
"li you had carpenters there you did not need or could
not do the work, it was your fault and not the fault of Trues-
dale & Co.?'' Strictly speaking, this called for an opinion, an
argumentative reply, and might have been excluded for that
reason. The proper question was whether he had unnecessary
538 Appellate Courts of Illinois.
Vol. 39.] Truesdale Mfg. Co. v. Hoyle.
employee. What Itgal lesult followed, if so, was not for the
"Vitness to determine.
Another question which the court refused permission to
ask on cross-examination was whether appellee had been
required to pay any damages or suffer any decrease of price
on his contract with the school authorities. It was not
claimed that he had been damaged in that way, and it was
unnecessary to ask this question. Objection is taken to the
refusal to permit a certain question to be asked the witness
Flemley, on cross-examination, in regard to the claims made
by masons for damages by delay on account of stone work as
distinguished from the brick work. We do not see just how
this refusal worked any serious harm to the appellant As to
all these objections it may be said that it is not apparent the
court improperly exercised its discretion^ in shortening the
examination of the witnesses. While great latitude is allow-
able upon cross-examination there must be an end, and unless
it appears that some serious invasion of the appellant's rights
has occurred, the objections thus urged should be overruled.
The same observation may be made as to the objection that
Mr. Truesdale, president of appellant company, was placed
upon the stand and required to state and produce any letters
and tclegi-ams in his possession received from appellee relat-
ing to the transactions in controversy. It is said this was
irregular; that notice or a subixBna dtices tecum should have
been served specifying what papers were wanted. The only
objection made at the time was that no particular papers were
designated.
It would have been a useless waste of time to siav the trial
until counsel could make out a list of the required letters and
telegrams, and the practical way was to let the witness pro-
duce what he had, from which the appellee might read wliat
was desired, leaving appellant to read the residue, if necessary
or desirable. Mr. Truesdale was compellable to testify, and
he might have been required at much expense of time and
patience to state whether he received a letter or telegram of
such and such a date, or about that date, relating to a par-
ticular matter. The mode adopted was the better one, and if
Third District — November Term, 1890. 639
Traesdale Mfg. Co. v. Hoyle.
possibly iiTegular under the old practice, when parties were
not competent and could not be compelled to testify against
their own interests, it should not be regarded as reversible ^
error at the present time.
The appellant objects that the witness Fleralcy, was asked
and permitted to answer what directions he had heard appel-
lee give about pushing forward the work.
This was competent as part of the res gestcBy to show the
methods adopted in reference to the business in hand. The
objection was properly overruled by the Circuit Court, as it
must be here.
It is objected that the court refused to permit appellant to
prove by two persons who were expert builders, how much
loss of time would be caused by carpenters changing from one
kind of work to another. Obviously there could be no gen-
eral rule about this. It would depend upon the circumstances
of the particular case, and the hypothesis presented to these
witnesses was so narrow and limited as to give no foundation
for an opinion that would have been useful in this investiga-
tion. Assuming without deciding that the matter was one
as to which the opinion of an expert was admissible, the lead-
ing facts of the case should have been presented hypothetic-
ally, from the standpoint of the appellant, at least, as a basis
for an opinion.
Such testimony is of but little use, at best, upon a point
involving so many conditions and limitations, and could have
done no good in this instance, in response to questions in the
form proposed. As was said by one of the witnesses in
answer to a subsequent question, he could not tell what
expense of delay would be caused by building up an inside
wall first; it would depend upon the workmen.
The answer to the proposed questions would necessarily be
so vague and depend so much upon conditions not stated, even
if capable of statement or practicable consideration in their
thus detailed or combined effect upon the particular matter,
as to be of no value.
One who was present and noted all that occurred and what
was the result, might state it as a fact One who was not
540 ' Appellate Courts of Illinois.
Vol. 39.] Truesdale Mfg. Co. v. Hoyle.
present could hardly give an opinion without knowing all the
conditions.
Another objection is that the witness Truesdale was not
permitted to answer what frames were referred to in a freight
receipt of May 25th. It does not appear that there was any
dispute as to what frames they were, or that an answer would
have thrown any useful light upon the controversy. Otlier
objections especially urged in reference to the exclusion of
testimony, pertain to questions which sought to bring out evi-
dence showing that the appellant had used due care and dili-
gence in endeavoring to comply with its contract. It was
comjietent to show what was actually done, and to show tho
facts generally for the purpose of proving whether the con-
tract to furnish the work within a reasonable time had been
complied with. Here was an absolute understanding to do a
certain thing, and it was no defense that the appellant using
due care and diligence was unable to perform its contract.
The contract should not have been undertaken by one who
could not perform it. This point has, however, been suffi-
ciently referred to heretofore, and need not be further dis-
cussed now.
The instructions given for appellant very fully presented
every rule of law necessary to bo stated, and if any error in
this respect appears, it was in stating some of those rules too
broadly and favorably for the appellant. We have found no
error prejudicial to appellant, in those given for appellee.
The last objection urged is that tho appellee was permitted
to open and close' to the jury.
The pleas did not deny the plaintiflf's cause of action, but
alleged payment and set-off as a defense. These threw the
burden of proof upon defendant, and, of course, gave him
the right to begin and conclude. This was done without
objection on the part of appellant, so far as the record shows,
and even if the case was not in a condition to justify such
action, no error could be assigned unless exception had been
noted at the time. We find no other points raised in tho
brief, and being of opinion that no material error is dis-
closed by the record, must aflu-m the judgment.
Judgment affirmed.
Third District — November Term, 1890. 541
C. & A. R. R. Co. v. Matthews.
The Chicago & Alton Railroad Company
V. ~s» Mil
48 966
Leonard Matthews. I39 541
Master and Servant — Railroads — Negligence of—Personal Injuries—'
Viaducts — Car of Unusual Height — Evidence — Instructions.
1. In an action broug^ht to recover for personal injuries alleged to have
been suffered by a servant tbrouf^h the negligence of his employer, a rail
road company, this court holds, that in view of the giving of erroneous
instructions touching the question of care and negligence upon the part oE
both parties, the judgment for the plaintiff cun not stand.
2. In the case presented, this court holds that, the jury shoulo have been
instructed to determine, from ail the facts and circumstances in evidence,
whether, under a fair and reasonable construction of all the rules offered in
evidence, the plaintiff was in the line of his duty when injured, and if he
failed to observe one of these rules, whether it was under such circumstances
as would justify him in such failure.
[Opinion filed Jcne 12, 1891.]
Appeal from the Circuit Court of McLean County; the-
Hon. Alfred Sample, Judge, presiding.
Messrs. William Brown and Williams & Capen, for appel-
lant
Messrs. Benjamin & MoERissEY,^for appellee.
Conger, P. J. Appellee is a young man twenty-four years
of age. He commenced work as a regular brakeman on the
Chicago division of appellant's road (from Chicago to Bloom-
ington) in September, 1889, and continued until April 16,
1890, when he was hurt. Prior to that time he was employed
by that company as a brakeman on other divisions and as a
switchman.
At Joliet station, on the line of the road, are the works of
the Joliet Steel Company, a pr'vate corporation. These con«r
sis^ of blast furnaces, rolling mills^ boiler houses^ smoke stacks
542 Appellate Courts of Illinois.
Vol. 39.] C. & A. R. R. Co. v. Matthews.
and other appurtenances nsed in tlie manufacture of the vari-
ous kinds of steel products, with large grounds, in which are
piled coke and other materials, and through which and
between the buildings run the main tracks of the Chicago &
Alton and the Santa Fe railroads, as well as a number of side
tracks used for switching purposes in the night as well as day.
Across its main tracks, east and west, the appellant permit-
ted the Steel Company to erect two viaducts or bridges, on
each of which is constructed a railroad track, used only by the
Steel Company for the transportation of materials from one
part of the grounds to another. At the north one of the two,
appellee was injured. It was nineteen feet ten inches from
the rail of appellant's track to this viaduct. The bridge would
easily clear a man standing on the ordinary cars of appellant,
but was insufficient to clear a man standino^ on the top of unu-
sually high cars. The bridge is approached by a curve from
the south, the track over it being parallel with appellant's
until within a short distance of the bridge, when the grade
rises and curves to the bridge. No reason is apparent why
the appellant did not require the Steel Company to place the
bridge a sufficient height above the tracks, to clear its em-
ployes on all cars run over its road, before granting per-
mission for the erection of a bridge it' was under no obliga-
tion to consent to. The only explanation oflFered is the
testimony of the superintendent of the Steel Works, who says:
" It is already too high for convenience."
At the time appellee was injured it was very dark along
the track of appellant through the Steel Mill yards, on
account of the smoke, steam and dust caused by the operation
of the works there, and the switching being done; so much
so that appellee, though looking for the bridge, could not see
it, and was unable to tell where he was with reference to it
There was no signal, or warning of any kind, placed to
apprise appellee of the location of the bridge, or of its
height. The evidence shows that a customary signal for that
purpose in use on appellant's road, was the erection of two
poles, one on each side of the road, at a distance of 100 to
150 feet from the bridge, with a wire stretched between the
Third District — November Term, 1890. 643
C. & A. R. R. Co. V. Matthews.
poles, over the track. From the wire are hung cords or straps,
BO hung that the lower ends of the straps shall be on a level
with, or a little lower than the bridge, so that when struck by
the straps an employe receives warning in time to avoid the
bridge, that he is in danger of being struck by. It is
claimed for appellee that the use of this simple and inexpen-
sive signal, or the setting of a lamp at tlie level of the bridge,
would have enabled him to avoid collision with the bridge,
which in the darkness he was unable to see.
On April 16, 1890, appellee was called by the regular call
boy, in the regular course of his business, to go from Brigh-
ton Park to Bloomington on a wild freight train — that is, one
not on the time table as a regular train, but managed wholly
by telegraph orders, having no "rights," but bound to keep
out of the way of all regular trains and " look out for every-
thing."
The train was composed of all through loads, and was made
up by other servants of the company, under the direction of
the train-master. A private car, marked "Menaslia Wooden-
ware Co.," one about three feet higher than the standard
cars of appellant, was put in the train, and was the third for-
ward of the caboose in a train of thirty or forty cars. In that
position the rear brakeman was compelled to pass back and
forth over it to perform his duty. It could have been placed
in the middle of the train where neither brakeman would be
obliged to cross it in the ordinary course. This was the first
car of that make that appellee had seen. Appellant was in
the habit of receiving foreign cars of diflPerent heights and
make in the course of business at Chicago, and transporting
them over its road.
Appellee was the rear brakeman on the train that proceeded
on its way south, reaching the entrance of the Joliet yards
about 10:10 p. m. At the whistling post, north of the cross-
ing of the E. J. & E. B. K. and north of the Steel Mill, which
point he recognized by means of a light on a semapliore signal
beside the track, appellee left the caboose, went on top of the
cars and commenced to set brakes, in obedience to the follow-
ing rules of appellant: "All trains, except passenger trains,
644 Appellate Courts of Illinois.
— — - I - - ™—
Vol. 39.] C, & A. R. R. Co. v. Matthews.
must approach all stations, under complete control, etppecting
to find the precedmg train on the main ^roc'A, whether it may
be a stopping place, as per table, for that train or not.
Conductors of freight trains must see that their brakemen
are on top of the train before reaching the .whistling post,
approaching and passing all stations." In addition to the
rules above quoted, their train was followed by No. 4, which
is the regular night express passenger train from Chicago to
St. Louis. The passenger train was due in Joliet in a few
minutes, and the freight train was so near on its time that it
became the duty of the men in charge of the freight to take
the side track, out of the way of the passenger. The bridge
in question was a little more than a good train length from
the connection where the train could back onto the side track,
and was used by the trainmen as a " land mark," to reacli the
connection at the proper rate of speed.
Appellee continued to set brakes until the train was
slowed down. To do that he was compelled to pass over the
high car and set two to four brakes in front of it. This done
he noticed the engine had started forward and was using
steam. It then became his duty to release the brakes he had
so set, to prevent the ti'ain being pulled in two, and in releas-
ing the brake he was compelled to pass over the high car,
climbing the upper steps of the side ladder, walking over it,
and so down on the other end. He released the brake on the
In'gh car at its south end, then walked to its rear end, turned
in a stooping position to look for the bridge, before climb-
ing down. He was unable to see the bridge on account of
the smoke and darkness and just after turning to look for it,
was struck by the bridge, on the forehead, and knocked off
the car. "When found he was south of the bridge, in the
the middle of the track over which his train had run. He was
put on the caboose of the train which had backed through
the connection out of the way of the passenger train, until
it was very close to where he was found.
We think the judgment of the Circuit Court should bo
reversed because of error in the instructions.
The questions of fact disclosed by the evidence make the
Third District — November Term, 1890. 545
G. & A. R. R. Co. V. Matthews.
qi]estion of reasonable care and negligence upon the part of
both appellant and appellee a cloee one, and hence it was of
the utmost importance that the jury should have been clearly
instructed upon this question. Many of the instructions are
too long, involved and complicated to give to the jury a clear
understanding of the relative duties of the parties.
Some of them, too, give undue importance to certain facts by
mentioning tliem and entirely ignoring all others in the case.
Instruction No. 3 for appellee is especially obnoxious in this
respect.
Appellee's sixth instruction is as follows :
" 6. The court instructs you that while the plaintiflf was
required to use reasonable care and diligence to comply with
the rule of the company, yet in determining the question of
what is reasonable care and diligence, you should take into
consideration all the circumstances surrounding the plaintift
as shown by the evidence, and if you believe from the evi-
dence that by reason of negligence on the part of the defend-
ant, the plaintiff was, without fault on his part, prevented
from complying with one or more of the rules offered in evi-
dence, then you should find for the plaintiff, notwithstanding
such failure to observe such rule, if you further believe from
the evidence that the plaintift, while in the exercise of reason-
able care for his personal safety, was injured by or through
carelessness or negligence of the defendant as charged in the
plaintiff's declaration." There waano pvidence that any neg-
ligence upon the part of the appellant prevented appellee
from complying w'ith the rules, and hence this instruction
tended to mislead and confuse the lurv.
•I 4r
The claim of appellee was that in going on the high car at
the time he was struck, he was doing his daty; that he was in
tact complying with the general spirit and tenor of the rules
of appellant; tliat tlie rule requiring him to keep off of high
cars, when near to bridges, was to be given a reasonable con-
struction, so as to harmonize with others requiring him at
certain times to be on top of the train.
It was this claim which appellee urged upon the jury, and
not that appellant had been guilty of any particular act of
Vol. XXXIX 3S
546 Appellate Courts of Illinois.
Vol. 39-] Kerr v. Hodge.
negligence that prevented appellee from complying with tl;e
rules.
The jury should have been told to determine from all the
facts and circumstances in evidence whether, under a fair and
reasonable construction of all the rules offered in evidence,
appellee was in the line of his duty, and if he failed to ob>erve
one of these rules, whether it was under such circumstances
as would justify him in such failure.
This was one of the vital points in the case and we are
inclined to think this instruction directed the jury to deter-
mine it upon an erroneous hypothesis, and one not justified
by the evidence.
The judgment of the Circuit Court will be reversed and
the cause remanded.
Reversed and reinarided*
John Kerr et al.
V.
Perry Hodge.
Master and Servant — Negligence of Mine Otcner — Failure to Comply
with Sees. U and 16 of Act of June 16, 1887— Frops— Witnesses— Crtdi-
hility of — Evidence — Instructions,
1. The credit of a witness may be irapencbed by proof that be has made
statements out of court, contrary to what he testifies at a given trial.
2. Such proof should be permitted to go to the jury, and they phould be
told to consider it in determining what credit and force shall be given a
witness under such circumstances; but they should not be iuKtrucfed tha^
they can rightfully disregard the entire testimony of a witness for that
reason unless corroborated.
[Opinion filed June 12, 1891.]
Appeal from the Circuit Court of Schujler County; the
Hon. J. C. Bagby, Judge, presiding.
Third District — November Term, 1890. 547
Kerr v. Hod^^e.
Messrs. W. L. Vandbventbr, S. B. Montgomeby and P. E.
Mann, for appellants.
A party is entitled to have the law accurately announced
in all the instructions. C, B. & Q. Ry. v. Payne, 49 III. 499;
111. Cent. Ey. Co. v. Maffit, t)7 111. 431; Camp Point Mfg. Co. v.
Ballon, 71 111. 417; Railroad Company v. Ear wood, 80 111, 88.
Especially is this the law where the evidence is conflicting.
Town of Geneva v. Peterson, 21 111. App. 458, and cases there
cited; Keys v. Fuller, 9 111. App. 530; Goodkind v. Rogan, 8
III. App. 416; Loman v. Best, 30 111. App. 323; King v.
Barnes, 30 111. App. 339; Holloway v. Johnson, 129 111. 367;
Shaw V. The People, 81 III 150; Stone & Lime Co. v. City
of Kankakee, 128 111. 173.
The lirst instruction given for the plaintiff was clearly
erroneous. It assumes that the defendants wilfully failed to
furnish props or cap-pieces. Tlie conclusion of the instruc-
tion contains a pointed intimation from the court that there
had been a "wilful failure" on the part of the defendants.
Any assumption or intimatiou from the court as to a material,
controverted fact is always prejudicial error. Star ife Cres-
cent Milling Co. v. Thomas, 27 111. App. 141; C. & N. W.
Ry. Co. v. Moranda, 108 111. 576; Chambers v. The People,
105 111. 417; Tascott v. Grace, 12 111. App. 639; Ashlock v.
Linder, 50 111. 169; .Chichester v. Whiteleather, 61 111. 259;
To\vn of Evans v. Dickey, 117 111. 291; Village of Warren v.
Wright, 103 111. 299; Coon v. The People, 99 111. 368; C, B.
& Q. Ry. Co. V. Dickson, 88 111. 437; 1 Thomp. on Tr.,Sec.
1039; Sigsworth v. Mclntyre, 18 111. 126; C. & E. I. Co. v!
O'Connor, 119 III. 598; C.^ B. & Q. Ry. v. 'Wauner, 123 111,
49; Ch., St. L. & P. Ry. Co. v. Hutchinson, 120 111. 589; For-
tune v. Jones, 30 111. App. 116.
The second of plaintiff's instructions is erroneous because it
also contains a clear but covert intimation from the court that
defendants were guilty of a " wilful failure."
See authorities cited at paragraph No. 2, supra. Especially
is this instruction erroneous for predicating liability of a
failure to supply cap-pieces when there is not one particle of
evidence in the record that any demand was ever made for or
548 Appellate Courts of Illinois.
Vol. 39.] Kerr v. Hodge.
a refusal to supply cap-pieces. Instructions must be based on
evidence. Ch., R I. & P. Ky. v. Felton, 125 111. 458; Alex-
ander V. Mt. Sterling, 71 111. 366; Bullock v. Narrott, 49 111.
62; Ky. Co. v. Lewis, 109 111. 122; Kailroad Comfmny v.
Bragonier, 119 111. 53; I. C. Ry. Co. v. Benton, 69 111. 175;
Snow V. Wiggin, 19 111. App. 542; Roberts v. Carter, 31 111-
App. 142; Ltitterell v. Caldwell, 31-111. App. 30; Price v. Hay
29 111. App. 552; Star Milling Co. v. Thomas, 27 111. App.
141, and cases cited; Sterling v. Merrill, 124 III. 522.
This instruction contains a covert and ingenious intimation
to the jury that defendants were guilty of a wilful violation
of duty. This is unfair and unwarrantable. Goodkiud v.
Rogan, 8 111. App. 416.
In C, B. & Q. R. Co. v. Warner, 123 III. 49, the Supreme
Court say: " It is, strictly speaking, never within the province
of the court to tell the jury that an ultimate fact is proven
from the existence of given, evidentiary facts." There was
a clear-cut issue of fact made by the pleadings as to plaintiff's
employment, and contested as a fact all the way through the
trial, but the court abandoning that issue, changed the name
of the mooted question and made short work of the matter by
deciding the very fact as a pure question of law. As further
condemnatory of this vicious instruction, see Town of Evans
V. Dickey, 117 111. 292; Chichester v. Whiteleather, 51 111.
259; Tascott v. Grace, 12 111. App. 639; Cicotte v. St. Anoc's
Church, 60 Mich. 559; C. & E. I. R. R. Co. v. O'Connor, 119
111. 588; Village of Warren v. Wright, 103 111. 299; Myers v.
I. & St. L. Ry, Co., 113 III. 386; City of Aurora v. Penning-
ton, 92 111. 564; Coon v. The People, 99 111. 368; Chicago &
N. W. Ry. Co. V. Moranda, 108 111. 576; Chambers v. The
People, 105 111. 417; Wilson v. Bauman, 80 111. 493; Olsen
V. Upsahl, 69 III. 273.
Messrs. E. J. Pemberton and Prentiss & Baily, for appel-
lee.
The first, second and ninth instructions, they say, assume or
intimate that the defendants " wilfully failed," or were guilty
of a wilful violation of duty, etc., and counsel having made
Third District — November Term, 1890. 549
Kerr v. Hodgp.
tliiri assertion cite a ** cartload " of authorities to show that
any assumption or intimation from the court is always preju-
dicial error. Upon an examination of these instructions it ie
at once apparent that neither of tlicm is justly amenable to
the charge made. ''Such wilful failure" used in the latter
part of the first instruction plainly refers right back to a
former part of the instruction and could not mislead any man
of ordinary understanding. There might possibly have been
a time when the average jury might have been unable to
understand plain English, but that time has passed in this part
of Illinois. But if, by any possibility, any of the jury should
discover an intimation from tlie court as to whether any fact
in controverey did or did not exist or had been proven, the
twelfth instruction given for appellants flatly and pointedly
disabuses their minds of any such idea. Lawrence v. Hager-
luan, 56 111. 68.
The fourth instruction given for appellee is charged with
being palpably erroneous because they say the court usurped
'• the province of the jury by the specious attempt to metamor-
phose a question of fact into a question of law." We think
counsel wholly fail to catch the import of that instruction. In
effect it sinfiply construes the meaning of the word "employed,"
as used in the enacting clause and elsewhere in the statute.
The word evidently is not used in the sense of hired to work,
but in the sense of engaged. Persons lawfully there and
lawfully doing anything therein, whether hired or not, would
be "employed" in the mine within the meaning of the stat-
ute. And if any such person while so "employed" in the
mine should be injured by reason of any wilful violation of
any of the provisions of the statute by the owner or operator
of the mines, such owner or operator would be liable in dam-
ages. This instruction might possibly have been unnecessary,
because we think it wholly immaterial whether Perry Hodge
was working there at all or not. If he was lawfully there
with the consent and knowledge of the Kerrs, that was
enough. But appellant's counsel were endeavoring, as was
apparent in their examination of John Kerr, and in fact all
through the case, to make it appear tliat because Perry Ilodge
550 Appellate Courts of Illinois.
Vol. 89.] Kerr v. Hodge.
had not been by regular contract hired to mine coal, that tlie
Kerrs could not be made liable in any event for any injury
received by him while in the mine. For this reason this
instruction was asked. It is much more favorable to appel-
lants than they were entitled to, but they can't be heard to
complcin of this.
Complaint is made of the eighth instruction for appellee.
That is certainly the law as given. City of Chicago v. Keefe,
Adm'r, lU 111. 222; Thurber v. Raih-oad Co., 60 JST. Y. 326.
Conger, P. J. This was an action on the case brought by
appellee against appellants under Sees. 14 and 16 of an act
approved June 16, 1887. Session Laws of 1887, page 235.
Sec. 16 is as follows : " The owners, agent or operator of
every coal mine shall keep a supply of timber constantly oil
hand,' of sufficient length and dimensions to be used as props
and cap-pieces, and shall deliver the same as required, with
the miner's empty car, so that the workmen may at all times
be able to properly secure said workings for their own safety."
The declaration alleged a failure on the part of appellants
to perform this duty, by reason of which appellee was injui-ed;
and upon a plea of not guilty, trial was had resulting in a ver-
dict and judgment for appellee for $850.
The question whether appellants had supplied props and
cap-])ieces in accordance with the spirit of the law, was one
of the vital questions in the case.
Upon this question, especially, the evidence of both the
appellants was all important, and a strong effort was made
upon the trial, by appellee, to break down their credibility
before the' jury, by showing that they had made statements
on former trials inconsistent with their statements made on
the present trial. It was therefore of the utmost importance
that the jury should be correctly instructecl upon this ques-
tion, so that they might determine, under the rules of law,
what weight and credence to give to the various witnesses-
Under these circumstances the court gave to the jnry, on
behalf of appellee, the following instruction :
16. " The court instructs the jury that one of the methods
Third District — November Term, 1890. 651
Kerr v. Hodge. *
of impeaching a witness is to show by competent evidence
that such witness has made a statement or statements out of
court, or in court at another time, contrary to, or different
from his testimony in the case in which he testifies as a wit-
ness in some matter material lo the issue in the case on trial:
and in this case, if you believe from the evidence that any
witness has been successfully impeached, you have a right to
disregard the entire testimony of such witness, except in so
far as his testimony may be corroborated by other and credi-
ble evidence in the case."
We have no doubt that the jury would understand this
instruction to mean that if any witness had been impeached
in the particular manner pointed out in the first part of the
instruction, then they were at liberty to disregard the entire
testimony of such witness, except, etc., in so far as corrobo-
rated.
Appellee insists that this instruction is correct, and refers to
Greeuleaf on Evidence, Sec. 462, where it is said : " The credit
of a witness may also be impeached by proof that he has
made statements out of court, contrary to what he has tes-
tified at the trial." Appellee also refers to several cases in the
Supreme Court, where the same general rule is laid down.
The above rule is sound, for it probably always affects the
veracity or the memory of a witness to prove former contra-
dictory statements. Craig v. Rohrer, 63 111. 325.
Hence it is always proper to permit such proof to go to
the jury and to tell them to consider it in determining what
credit and force shall, be given to a witness under such cir-
cumstances. But this instruction tells the jury that if a
witness has made previous statements contrary to or differ-
ent from his teetimonv on the witness stand, in a material
matter, the entire evidence of such witness is to be disregarded,
except in so far as it may be corroborated by other credible
evidence.
Under this instruction the jury would have no right to
consider whether the former statements were made inadvert-
ently or under an honest mistake as to the facts; but must,
under such circumstances, sweep his testimony aside the same
552 Appellate Courts of Illinois.
Voi;. 39.] Kerr v. Hodge.
as though they were to believe that the witness had wilfully
and intentionally committed perjury. This is not the law.
The jury might have been told that contradictory Btate-
ments should be considered by them in determining the
weight and credit to be given to any witness, but they should
not have been told that they could rightfully disregard the
entire testimony of a witness for that reason, unless such wit-
ness makes them wilfully, or that the false statements must
be knowingly made. McClure v. Williams, 65 111. 390; Pol-
lard V. The People, 69 111. 148; Linck v. Whipple, 31 App.
155.
The seventeenth instruction given appellee is as follows:
17. *'The court instructs the jury that if you believe from
the evidence in this case that any witness has wilfully testi-
fied falsely to any matter, material to the issue in the ease,
you have the right to wholly disregard the testimony of such
witness, except in so far as such witness may be corroboi*ated
by other credible evidence in the case."
This instruction does not, in our opinion, cure or avoid the
vice of the sixteenth. The jury would naturally conclude
that they referred to different questions, and while the seven-
teenth is good law, its probable effect upon the jury would
be to make the sixteenth more dangerous and vicious than it
would have been alone.
The jury might reasonably conclude that as the seventeenth
required wilful perjury on the part of a witness to discredit
him entirely, the sixteenth did not, but only that contradictory
statements upon material questions should be shown.
We can not think, that under this sixteenth instruction,
appellees have had a fair trial, or that justice has been done
them, and therefore the judgment of the Circuit Court will
be reversed and the cause remanded.
Heversed and remanded.
Third District — November Term, 1890. 553
Sunduiacher v. BJock.
Charles Sundmacher I S ^S
Innkeepers — Fraud on — Pleading — Evidence — Practice — Malicious
Prosecution — Probable Cause — Trespass.
1. An arrest by a private person without process is a trespass, if no
criminal offense was committed or attempted in his presence, whether he
hud probable cause or not, to believe the person arrested guilty, and counts
ia trespass in the declaration in an action based thereon need not con-
tain the averment that the alleged arrest was '* without any reasonable or
probable cause/*
2. The rule that the proofs must correspond with the allegations in a
declaration applies only to such as are material in themselves, or being imma-
terial, are yet so interwoven with what are material as to make the latter
depend upon them and thus expose both to a traverse.
3. Under counts charging malicious prosecution, the burden is upon the
plaintiff to prove a want of probable cause for a criminal pi^ecution.
4. A defendant should not in such case, there having been probable
Qiuse, suffer substantial damages although the manner of the original arrest
was Immiliating and offensive.
5. An action of trespass may be supported against a person, not being
an infant or /erne covert, who afterward assents to a trespass committed for
his benefit.
6. Also against all who aided or abetted in committing the same.
7.* No prosecution can be maintained under the act touching frauds upon
innkeepers, for a refusal to pay for something which has not been * obtained.'*
[Opinion filed June 12, 1891.]
Appeal from the Circuit Court of Sangamon County; the
Hon. J. A. Creighton, Judge, presiding.
Messrs. Brown, Wheeler & Brown, for appellant.
A private person can not justify an arrest upon the ground
of suspicion of guilt only; guilt in such case must be shown.
Dodds et al. v. Board, 43 111. 95; Kindred v. Stitt et al., 51
111. 401; Cooley on Torts, top page 201, 202.
There is no pretense that the defendants were officers or
that any warrant had been issued when the arrest was made.
59 3j|
V. 39 5^1
IQ9» 118|
David J. Block et al. 1 39 5531
80 611
554 Appellate Coukts of Illinois.
Vol. 39.] Sundmacher v. Block.
If tlie defendants songht to justify the arrest because a crim-
inal offense had been committed in their presence, it was neces-
sary for them to plead it; also, if they would jnstify the assault
made upon the plaintiff, for the same reason they should have
presented it by pica. So far as this record discloses, the arrest
of the plaintiff in the first instance was without authority of
law, aTid the court clearly .erred in refusing the 7th and 8tli
instructions asked for by the plaintiff. Shanley v. Wells, 71
111. 78.
On the merits of the case, the verdict should have been
against the defendants. Passing all other questions, we con-
tend that the ])Iaintiff made out his case and sustained it by
the weight of the evidence. The arrest of the plaintiff
was, as the evidence abundantly establishes, causeless and
groundless. He had committed no offense, and the effort of
the defendants to collect the unjust and paltry demand by
brute force and the employment of the power of the State
under the guise of the criminal code, can surely find no sanc-
tion in a court of law. Was there, or could there have been
a reasonable suspicion, supported by circumstances sufficiently
strong in themselves to warrant a cautious man in the belief
that the plaintiff was guilty of the offense charged ? Unless
there was such a reasonab'e suspicion, there was no probable
cause for his arrest. Angelo v. Faul, 85 111. 106.
Whether the facts in proof constitute probable cause for
commencing a criminal proceeding, is a question of law.
Wade v. Waldea, 23 HI. 425.
Messrs. Patton & Hamilton, for appellees.
No rule of law is better settled than that in an action for a
tort there can be no recovery against two or more tort fea-
sors unless they are Jointly liable for the tort complained of;
all defendants sued together roust be liable jointly, so tliat a
joint judgment may be entered agamst all. Shields v.
McKee, 11 III. App. 188; Dalby v. Young, 3 111. App. 39.
Therefore the vQrdict was right and could not have been
otherwise than what it was. Because the evidence conclu-
sively showed that the defendants, if liable at all, were not
Third District — November Term, 1890. 555
Snndtnacher t. Block.
liable jointly for either or both torts complained of, lience
the verdict and judgment must have been for the appellees,
even if both causes of action had been proven.
Again we sugg^est that it was impossible for the court to
have given the 7th and 8th instructions asked by appellant.
The court instructed at appellant's instance that if the
jury believe that the appellees maliciously and without prob-
able cause arrested or caused the arrest and imprisonment of
appellant, then appellees were liable. This instruction, wo
think, is bad, because there is no evidence to support it; but
appellees are not complaining of it. But having given this
instruction, how could the court, as against all the appelleeB,
instruct that a recovery might be had against all of them if
they arrested and detained the appellant or caused it to be
done, without warrant, etc. Such instruction would have
been erroneous, because there was no evidence to show that
Block, Sr., had anything to do with the arrest or detention
which took place, previous to the swearing out of the war-
rant. To have given the 7th and 8th instructions asked,
would have authorized the jury to allow damages for a tort by
Block, Jr., and Jones, and also damages for a distinct tort by
Block, Sr., in the same suit. Daly v. Young, siipra.
The complaint of the raodiiication of appellant's 5th in-
struction is, we think, without foundation. As asked, it put
appellee's liability wholly upon the gi*ound that they did not
believe in 'good faith that appellant was guilty. The court
so modified it as to require that the appellees must liave
been actuated by malice. This was right. It is the settled
doctrine of our Supreme Court that, in order to maintain an
action for malicious prosecution, there must be both malice
and want of probable cause. Both must concur; though mal-
ice may be inferred from want of probable cause, probable
cause can not be inferred from malice. Mitchinson v. Cross,
58 111. 366; Leidig v. Kawson, 1 Scam. 272; Boss v. Innis,
35 111. 605; Chapman v. Cawrey, 50 111. 512.
Malice is not a legal presumption from the want of proba-
ble cause. It is for the jury to find from the facts, when
there was no probable cause, whether there was malice or
656 Appellate CouRts of Illinois.
Vol. 39 ] Sundmacher v. Block.
not. The defendant in this class of actions maj not he able
to show probahle cause, but he may be able to rebut any pre-
sumption of malice. Hirschi v. Metteman, 7 111. App. 112;
Eussell V. Deer, 7 111. App. 181.
In Hurd v. Shaw, 20 111. 350, tlio court say : *^ We are
inclined to the opinion that an action for a malicious prosecu-
tion, unless actual malice be proved, should not prevail in
any case where the merits have not been tried and a verdict
pronounced." See, also, Ross v. Innis, 26 111. 259; Wicker v.
Hotchkiss, 62 111. 107; Ames v. Snider, 69 111. 376; Anderson
V. Friend, 71 111. 479; Same v. Same, 85 111. 135.
In.Splane v. Byrne, 9 111. App. 394, the court say: "To
constitute malice there must be something more than mere
spite or hatred; there must be mains aniynua showing that
the party is actuated by improper and indirect motives."
Pleasants, J. The facts out of which this suit arose
occurred on the 19th and 20th days of November, 1889,
during which the Grand Lodge of Odd Fellows was in session
at the city of Springfield. Appellees were respectively pro-
prietor, clerk and watchman of the Palace Hotel in that city.
Appellant, with two friends, all of Murphysboro, III., at-
tending the session, in the afternoon of the 19th applied to
the clerk for accommodations at the liotel and were regis-
tered and assigned to a room together. Appellant was
furnished with a card or ticket, as follows : " Hotel Palace;
meal and room ticket; C. H. Sundmacher; room 10; arrived
at supper the 19th; guests will please present this ticket at
dining room for meals and at office for key to room, and
return the same to the cashier on settlement of account." On
the back of it was the following: "Guests will be charged
full rates from the time of taking rooms, including meals
being served at tlie time of departure; no allowance made for
absence from meals." The other two gentlemen received
tickets differing only in the name of the guest. Tliey had
supper and occupied the room that night. In the morning, a
few minutes after the dining room was open and guests were
going in, appellant went up to the counter in the office and
Third District — November Term, 1890. 557
Sundinacher v. Block.
laid down a dollar, saying to the clerk that he wanted to pay
for his supper and room, the regular charge for which was
one dollar. His companions did the same. The clerk claimed
that each should pay a half dollar more, being for breakfa'st.
They said they hadn't bad breakfast and didn't want it, and
declined to pay for it. After some words back and forth
they started out leaving the money on the counter. As they
were leaving the clerk said he thought he would find a way
to make them pay, or to that effect, and appellant replied,
"very well, you'll find us at the State House," The clerk
then called Jones, the watchman, and told him to stop those
men; that they had refused to pay their bill. Jones fol-
lowed them out to the sidewalk, and there, in front of the
hotel, and in the presence of a large number of persons,
arrested appellant and one of his companions. After a little
he took his hand off the other, but with considerable force
held appellant, who had made some show of resistance,
against the wall of the building. Direction was given by
somebody to send for the patrol wagon. In about ten or fif-
teen minutes it appeared with two policemen. JBiock, Jr.,
pointed out the two men to the policeman, and Jones told
him to take them. The oflScer asked, "What have these men
been doing?" and Block answered, "They refused to pay
their bill, and we will appear against them when father gets
up." Appellant was placed in the wagon and his companion
followed. They were driven to the city jail or calaboose,
searched and put in a cell.
The elder Block had not arisen when these occurrences
took place. On coming down from his room and learning of
them in a general way, between seven and eight o'clock, he
went to tlie calaboose to see them. He says he asked them
if they were Odd Fellows,, and being told they were, said he
was very sorry this thing occurred; sorry he was not up; that
if he had been, he didn't think it would have happened, '* 1
said, * We have a different way of settling matters,' and this
gentleman (referring to appellant) spoke up in a very pompous
kind of way and says, ' We don't propose to talk about this
matter at all; I am a lawyer and know my rights; all we want
558 Appellate Courts of Illinois.
Sundraachor v. Block.
■ - I
is counsel and would like to see Judge Allen;' and I said
* Gentlemen, if that is all, that is all riglit.' And I turned to
Mr. Alyea and says, ' be kind enough to extend to these gen-
tlemen any courtesy you can,' and 1 walked out and went over
to the squire's office, thinking that was the best thing 1 conld
do to protect my son and house from further trouble; and to
show I had some cause for this arrest, I swore out a warrant."
On cross-examination he stated that when he made the com-
plaint he did not know they had paid for supper and lodging
and didn't want any breakfast; and that he told the magistrate
not the particulars but simply that they had refused to pay
their bill. On his return to the hotel he learned the facts.
And further, "I went there (to the calaboose) in the spirit
of an Odd Fellow to help them out, and after I saw the vin-
dictive spirit manifested by that fellow, both as a Mason and
Odd Fellow, I concluded I would go right over and swear
out a warrant and protect myself. I saw he was vindictive,
that was his spirit, and I took the initiatory step."
The warrant was served and appellant taken before the
magistrate about lialf past nine o'clock. They wanted an
immediate hearing, but Mr. Block was on the Odd Fellows'
reception committee, preparing for a parade, very busy oth-
erwise and had no attorney. The hearing was postponed to
the afternoon, the prisoners being discharged in the mean-
time on their own recognizance. In the afternoon the com-
plaint was heard, occupying several hours. Each of the
appellees and several other witnesses testified, and the pris-
oners were discharged.
Appellant thereupon brought this suit. The declaration
was in four counts — two in case, for malicious prosecution
upon the charge of obtaining food, lodging and accommo-
dations from the Palace Hotel, with intent to defraud the
keeper thereof, and two in trespass, charging that defend-
ants, on, etc., at, etc., with force and arms made an assault
upon the plaintiff, and seized and laid hold of him, and com-
pelled him to enter the police patrol wagon, and to go to
police headquarters, and there imprisoned him, and kept and
detained him there "without any reasonable or probable
Third District — November Term, 1890. 559
9
Sundiuacher v. Block.
cause," for a long space of time, to wit, twelve hoars, against
the peace of the people of this State.
"Not guilty,'' was the only plea interposed; upon which a
trial was had, resulting in a verdict for the defendants. A
motion for a new trial was overruled and judgment entered
upon the verdict against the plaintiff. Exceptions were duly
taken.
The theory of the case as presented on behalf, of appellees
is, that appellant, by his pleading, assumed the burden of
proving a want of probable cause for the original arrest, car-
riage to and detention at the city prison, being the wrong
complained of in the trespass counts, as well as foi: the pros-
ecution on the warrant afterward sworn out; that whether
there was or was not a want of probable cause was a ques-
tion for the jury; that the evidence was sufficient to support a
finding that there was no want of probable cause for the
alleged wrongs, and also that the evidence failed to show a
joint liability of the defendants for the acts set forth in
either of the counts,', but on the contrary positively proved,
that even if they had been wrongful. Block, Sr., was not liable
for the original arrest, nor the other defendants for the pros-
ecution on the warrant.
It is conceded that the counts in trespass would have been
just as complete, good and sufficient statements of the cause of
action, without the averment that the alleged arrest was
*' without any reasonable or. probable cause." Having been
made by private persons without process, it was a trespass, if
no criminal offense had been in fact committed or attempted
by appellant in their presence, whether they had or had not
probable cause to believe him guilty. Sec. 342, Chap. 38, K.
S.; Kindred v. Stitt, 51 111. 401; Dodds v. Board, 43 Id. 95.
The want of probable cause was not an element of the wrong,
nor of essential description of it, but at most of aggravation
only, and its existence would have been no justification to
defendants. The averment was therefore unnecessary. De-
fendants could not properly traverse it, nor was plaintiff
bound to prove it. Stephens on Pleading, side pp. 217-41-
43; Chap. 1., PI., side p. 229, 611-12; Burnap. v. Wight, 14
560 Appex^late Courts of Illinois.
Vol. 39.] Sundmacher v. Block.
111. 301; Qoincy Coal Co. v. Hood, 77 Id. 72. The rule that
the proofs must correspond with the allegations applies only
to such as are material in themselves, or, being immaterial, are
yet so interwoven with what are material as to make the
latter depend upon them and thus expose both to a traverse.
Here the statement of the cause of action is not at all inter-
woven with or dependent upon the allegation in question. It
may be stricken out entirely, as surplusage, without impairing?
or changing the legal effect of these counts. 1 Greenl, on Evi-
dence, Sec. 51, and authorities, supra.
It is said that by the instructions given for him, appellant
was committed to the proposition that the maintenance of his
case under those counts required proof on his part of the
want of probable cause for his arrest. And it is true that
these instructions do not all in terms distinguish the counts
in trespass from those in case. We think, however, that of
those referred to, the second, third and sixth are applied with
sufficient clearness to the latter only. But appellant should
not be estopped by the others, if their application also was
made clear by instructions refused. The fifth and seventh as
asked did in terms apply to the arrest without process, ant I
exclude the want of probable cause as an element of the
wrong therein stated. Had they been given, it would have
been clear that those which included it referred only to the
counts in case. Appellant is therefore not estopped to com-
plain of their refusal, if they stated the law correctly. Tliat
they did is hardly denied.
Nor is any reason perceived for refusing the ninth. And
80, also, as to the tenth, since the third given, which defined
probable cause in substantially the same way, did not state
the charge in question to wh'ch it applied and wliich might
have materially aided the jury in understanding the defi-
nition.
But we have not thought any of these questions relating to
the counts in trespass of sufficient importance in this case to
demand a very careful consideration. It is agreed that under
the others the burden was upon appellant to prove a want of
probable cause for tlie criminal prosecution. If he failed to
Third District — November Term, 1890. 561
Sundniacher v. Block.
prove it, if there was probable cause, then the wrong of the
orifirinal arrest and detention was more technical than substan-
tial. It was really the beginning of the prosecution, and
although the manner of it was very humiliating and oflfensive,
yet if the prosecution was not without probable canse the
defendants should not suffer substantial damages. But the
main reason is that however these questions should be decided,
if it were clear that by the law or under the pleading the
burden of showing a want of probable cause for the original
arrest was also upon the plaintiff, he did show it beyond a
reasonable doubt. On this question the evidence is all one
way. The testimony of the defendants alone was conclusive,
showing it to be a moral certainty. Not a single circumstance
appears which tends in the least degree to the contrary.
It happens in this case, as it rarely does where this ques-
tion is involved, that every fact needful to its determination
is prove<l and undisputed. Usually there is a want or a con-
flict of evidence, or it is circumstantial and inconclusive as to
some facts to be found in order to determine whether the
offense charged was committed, or the party charged com-
mitted it, and as to which an inference or conclusion either
way might not be unreasonable; or the defendant may have
been excusably ignorant of some material fact. In such cases
the question of probable cause is one of fact for the jury to
find. Not so here. The facts upon which it was to be deter-
mined whether the offense charged had been committed were
all so known, and of such a character as to present to the
defendants only a question of law; and since this so appeared
on the trial, the same question was there presented. If
these facts were known to the defendants and showed that it
had not been committed, they could not have had probable
cause for the arrest and prosecution of the plaintiff. If they
were ignorant of the terms of the law, or mistaken in their
opinion of its meaning, that was their misfortune if not their
fault, of which they and not the plaintiff should bear the con-
sequences.
The statute under which the prosecution was instituted is
as f oll(7wd :
You XXXIX »
562 Appellate Courts of Illinois.
Vol. 39.] Sundmacher v. Block.
''Sec. 1. Bo it enacted," etc., "that any person who shall
obtain food, lodging or other accommodation at any hotel,
inn, boarding or eating house, with intent to defrand the
owner or keeper thereof, shall be deemed guilty of a mis-
demeanor, and upon conviction shall be punished by a line
not exceeding $100, or iuxprisonment in the county jail not
exceeding thirty days.
" Sec. 2. Proof that lodging, food or other accommoda-
tion was obtained by false pretense * * * or that the
party refused oi neglected to pay for such food, lodging or
other accommodation on demand * * * shall be p?nma
facie proof of the fraudulent intent mentioned in section one
of this act." Sec. 155 a, 155 b, pp. 480-1, Chap. 38, Hurd's
E. S., 1889.
The accommodation in question, on account of which
appellant was arrested and prosecuted, was breakfast on
the morning of November 20, 1889. That is proved, admit-
ted and certain. No claim was or is made in respect to any
other. And it is just as fully proved, admitted and certain
that he did not "obtain" it; that the defendants who ordered
and made the original arrest then knew he had not "obtained"
it; and that the defendant who afterward swore out the war-
rant further prosecuted his complaint after he also knew it.
It is even conceded that these proceedings against him were
begun and continued because he refused to obtain it and there-
fore refused to pay the fifty cents demanded for it.
To "obtain" is "to get. hold of," to "obtain possession of,"
" to acquire," to " maintain a hold upon," to "keep," to "pojB-
sess." To contract for, does not approach it in meaning.
(Webster's Dictionary.)
And yet it is said the jury were warranted by the evidence
in finding that there was probable cause for the arrest and
prospcution under this statute, and that the court did not err
in refusing to set aside that finding.
The clerk testified that when they applied for a room he
asked appellant how long they were going to remain, and he
answered that he was not positive, but he would be there
until after breakfast, and the other two men would remain
Third District — ^November Term, 1890. 563
Sundraacher v. Block.
during the session of the grand lodge. Appellant and his
companion, Watson, the only other witnesses to that point,
relate appellant's statement as to himself dijfferently, as hav-
ing been that he was going away at six o'clock, or early in
tlie morning, without reference to breakfast. But if his state-
ment was as given by the clerk, the fact remains that he did
not obtain the breakfast. Nor can it be held that there was a
contract, as to either, that he would positively remain for any
definite time. They were transients, whose present pui-poses
in that regard, though stated as represented, would not be
contracts for the time mentioned,' but lawfully changeable at
their option for any reason thereafter arising. Nor, if they
were contracts would it affect the question under considera-
tion. This statute is not to be extended by any liberality of
construction in favor of innkeepers; and we hold that in no
proceeding under it is the civil liability of the guest for any
accommodation not actually "obtained" at all pertinent. If
he definitely contracted to remain for a week, and left without
fault of the innkeeper, at the close of the first day, paying or
tendering payment for all that he had actually obtained, evi-
dence of his refusal to pay for the further time contracted for
would not be admissible as tending to prove an offense, or
probable cause for a prosecution, under this act. Nor should
the jury be permitted, upon either of those issues, to consider
whether or not the accommodation actual Iv obtained was bet-
ter, in view of what was further contracted for, than it other-
wise would have been, if payment for it was made or tendered
according to its actual value or regular price. Tlie innkeeper
will not be allowed to claim that if he had understood the
guest was to remain only a day instead of a week, he would
or might have been furnished a meaner room, any more
than that there would or might have been less of benignity
in the smiles of the clerk or of alacrity in the responses of
bell boys or the movements of table waiters. Having pecul-
iar rights they are subject to peculiar obligations.
Upon the remaining question we are of opinion that all of
the defendants were liable for both the original arrest and
the subsequent prosecution*
5C4 Appellate Courts of Illinois.
Vol. 39.] Sundmacher v. Block.
As to the original arrest, David J. Block, Jr., ordered it
and Jones made it. It is elementary law that this action
"may be supported asjainst a person, not being an infant or
^eme covert^ who afterward assents to a trespass committed
for his benefit." 1 Chitty on PI., side p. 180. It was made
for the benefit of Block, Sr., and if he did not assent to it we
do not know what would amount to an assent.
As showina: that he did not, it is said that at the calaboose
he expressed to the prisoners his regret at what had occurred.
Had this been on account of an admitted wrong to them, it
was wholly in his power to right it so far as that could be
done by having them at once discharged, and was a conces-
sion of the propriety of appellant's insistence on having
counsel. His regret was not expressed until he had ascer-
tained what he probably already had some reason to suppose,
that they were Odd-Fellows — and froin his own statement
there appears to have been no occasion for his regret except
that they had committed a crime and that it reflected upon the
order; for he had been informed and believed that they had
obtained food and lodging at his hotel and refused, without
reason, to pay their bills. Even in this view it is difficult to
refrain from smiling at the queer picture he presents of him-
self. This intended victim of their fraud, indignant at their
vindictiveness and impudence in threatening to hav^e a law-
yer, bespeaking of the calaboose keeper his extension to
" these gentlemen " of all possible courtesies, and hurrying off
to swear out a warrant against them. But if his intention
when he went to the calaboose was really to repudiate the
act of his son and watchman, he then changed it He
" walked out and went over I the squire's office, thinking
that was the best thing he could do to protect his son and
house from further trouble; and to show that he had some
cause for this arrest, he swore out a warrant." Such is his
own testimony. After doing this and learning the facts of
the case more fully, he employed counsel, produced witnesses,
including his son and his watchman, and prosecuted his com-
plaint. It is idle to contend that this was not an assent to
and a ratification and adoption of their acts. It is equally
Third District — November Term, 1890. 565
Dines v. The People.
clear that they took part, as aiders and abetters, in the prose-
cution. They ordered and made the arrest for the purpose
of prosecuting. The son told the policeman who took the
plaintiff to the calaboose, in the presence of the watchman,
that they would appear against him when his father got up.
This was their own expression of their own purpose, before
they had conferred with his father about it; and they did so
appear.
We think the verdict was not only unsupported by any
evidence whatever, but was clearly contrary to it and to the
law, and should have been set aside. The judgment will
therefore be reversed and the cause remanded.
Heversed and remanded.
Charles W. Dines
V,
The People of the State of Illinois.
89 565
(el 14 >327
Contempt — Clerh of County Court — Order of Court^Ignoranee of—
Judicial Notice,
1. In proceed! ni?8 afrainst a clerk of court for contempt, he having failed
to obey an order thereof touching one of his official duties, it must be shown
to convict him, that he wilfully intended to disobey or obstruct the same.
2. It will not be necessarily presumed in such case, that the clerk knew
the contents uf such order when he filed the same.
8. A court can only take judicial notice of such acts and proceedings as
will properly go upon the record; and the knowledge, opinion or recollec-
tion of the judge in such case, that the clerk did know the contents of the
order, is his personal and not his judicial knowledge.
[Opinion filed June 12, 1891.]
In error to the County Court of McDonough County; the
Hon, L. Y. Sherman, Judge, presiding.
Me6Bi*B. Neece & Son and Prentiss & Baily, for plaintiff
in error.
666 Appellate Courts of Illinois.
Vol. 39.] Dines v. The People.
Messrs. George D. Tunniclikf, State's Attorney, and H. C.
Agnew, for defendants in error.
Conger, P. J. This was an information against plaintiff
in error in the County Court for contempt in destroying cer-
tain ballots in his custody in violation of an order of the court
to preserve the same. The order was made in a cause in said
court of The People v. Charles Newton Wilson, wherein he
was charged with fraud at an election.
Plaintiff in error was clerk of the County Court, and at
the December terra, 1888, of said court, upon the application
of the State's attorney, a written order was signed by the judge
of said court, and filed in the papers in the case of The Peo-
ple V, Wilson, by plaintiff in error, in which written order he
was ordered not to destroy certain poll books and ballots, but
to carefully preserve them until the further order of the court.
At the June term, 1890, of the County Court, the present
information was filed, interrogatories propounded to plaintiff
in error, which he answered under oath; the fourth and its
answer being as follows:
Fourth : " If you have destroyed said ballots, state why did
you destroy them in violation of the order of this court?"
Answer to interrogatory fourth : "I destroyed said ballots
because it was my sworn duty to do so under the statute of
the State of Illinois. The paper purporting to be an order
was never read or understood by me until January, 1890»
although the same was filed by me. At the time of filing I
did not know what said paper contained, and never knew tlie
contents thereof until the month of January, A. D. 1890. In
destroying said ballots I meant no contempt of this court, but
was only aiming to carry out my duty as clerk of this court,
as I understood it. C. W. Dijjiks."
" Subscribed and sworn to before me this 23d day of June,
A. D. 1890.
[Seal.] W. H. Neece, Notary Public.'*
On the 27th of June, 1890, the following order and record
are made by the County Court:
Third District — November Term, 1890. 567
Dines v. The People.
** The People of the State of Illinois )
vs. >■ Contempt.
Charles W. Dines. )
And now on this 27th daj of June, A. D. 1890, it being one
of the days of the June term of said court, A. D. 1890, comes
the defendant, Charles W. Dines, in his own proper person
as well as by his attorneys, and this case having been heard
upon the information, the written interrogatories filed herein,
and the answer of the defendant to said interrogatories, and
the court having heard the arguments of attorneys, and being
fully advised in the premises, and on consideration thereof,
doth find that this court did, at the December term, A. D.
1888, of this court, make an order, containinor among other
things an order that said defendant should be and he was
enjoined and inhibited from destroying or in any way inter-
fering with the ballots therein mentioned, and that said
m
defendant should carefully and safely preserve said ballots
until the further order of this court, and fail not under pains
and penalties of being in contempt of this court; and it fui'ther
appearing, and this court takes judicial notice, that said order
was made in open court at said December term, A. D. 1888*
and that said defendant, Cliarles W. Dines, was then and there
personally present in open court when said order was made,
and that said defendant, at the time and place aforesaid, was
informed by this court, and he then and there well knew that
said order was made and the contents thereof; and the court
further finds from the interrogatories and answers thereto,
that the said defendant destroved the ballots mentioned in
said order, after said order was made, and in violation and
disobedience thereof."
Whereupon the court adjudged plaintiflF in error to be in
contempt and fined him $200, which judgment plaintiflE in
error seeks to have reversed.
From the sworn answer of plaintiff in error it appears that
while he filed the written order, he did not know its contents
until after he had destroyed the ballots, as lie supposed, in
accordance with his duties under the law. If this answer is
to be taken as the truth, it is clear that he was not ffuilty of
contempt.
668 Appellate Courts of Illinois.
Vol. 39.] Dines v. The People.
Plaintiff in error might be presumed to know the ordei'B
and proceedings of the court, of which lie is clerk, in so far
as any person might be damaged by reason of his ignorance,
and it may be, that in such cases he would not bo allowed to
]'!oad his ignorance; but in a proceeding like the present for
contempt, there must exist a wilful intention to disobey, or
obstruct the orders of the court. In otlier words, there must
be an intention to do a wrong.
The only question we shall consider is, was it within the
power of the court to take judicial notice that plaintiff in
error, "was then and there personally present when said
order was made, and that said defendant (plaintiff in error),
at the time and place aforesaid, was informed by this court,
and he then and there well knew that said order was made
and tlie contents thereof."
Of what facts will a court take judicial uotice? Of the
signatures of their own ofBcers, their own judgments, and
orders, whether a bill of [exceptions has been signed by the
judge, and various other matters. The rule which seems to
us to govern in the present case is thus laid down in Whar-
ton, and approved in Secrist v. Petty, 109 III. 188:
" The doctrine is well recognized that a court will take judi-
cial notice of the state of the pleadings, and the various steps
which have been taken in a particular cause, and consequently
the judge must take notice of his own official acts in the
progress of such a case, and he therefore needs no proof to
advise him of what he has done in it." What are official acts?
We think they are such only as would form part of the
record.
A court can only take judicial notice of such acts and pro-
ceedings as would properly go upon the record. Hence, the
fact that the order was made when it was filed, and its con-
tents, were all proper subjects of judicial notice; but the
knowledge, opinion, or recollection resting in the breast of the
judge that the clerk did know the contents of the order could
not be made a part of the record, and hence was merely his
personal and not his judicial knowledge.
We do not mean to be understood that the court can only
Third District — November Term, 1890. 669
Conn. Mat. Life Ins. Co. v. Smith.
take judicial notice of such acts and proceedings as are actu-
ally recorded. Mere verbal orders may be given by the
judge, which are never placed upon record, and for the disobe-
dience of which one might be punished as for contempt But
all such orders and proceedings could properly be ])laced upon
the record of the court, if necessary, and usually would bo, if
proceedings in the nature of punishing for contempt were to
grow out of them.
For the error indicated th^ judgment of the County Court
will be reversed, and the cause remanded.
Reversed and revianded.
The Connecticut Mutual Life Insurance Com-
pany
V.
Emma F. Smith, Administratrix.
hxfe Tnsurauce — Policy — Condifions in — Breach of — Habits of Infoxica-
Hon — Suicide — Pleading — Evidence — Instructions.
In an action bronght to recover upon a life insurance policy, the defend-
ant contcndingr amont; otlter thinpr?* that assured died a suicide, and that
the plaintiff i» entitled to recov t only an amount named, this court holds
{IS proper the rulin^jfs of the trial court touching the defendant's demurrer
to the first replication to the defendant's third plea; likewise as to receiving
evidence under the second replication to said plea; and declines, in view of
the evidence, to interfere with the judgment for the plaintiff,
[Opinion filed June 12, 1891.]
Appeal from the Circuit Court of Tazewell County; the
Hon. N. W. Green, Judge, presiding.
Messrs. Isham, Lincoln & Beale, for appellant.
Messrs. William Don Maus and W. R. Curran, for appel-
lee.
570 Appellate Courts of Illinois.
Vol. 39.] Conn. Mut. Life Ins. Co. v. Smith.
Conger," P. J. This was a suit upon a life insurance policy
issued November 23, 18S0, by appellant, upon the life of
Conrad H. Smith, the husband of appellee.
To the declaration appellant filed the plea of general issue,
and two special pleas, as follows:
" Second plea, actio non, etc., that one of the provisions of
said policy of insurance in the said declaration mentioned,
was, that if the insured should die in a state of drunkenness,
or from any disease in any decree resulting from the occa-
sional or habitual use of alcoholic or narcotic stimulants, or
should thereby injure or impair his health, whether perma-
nently or temporarily, then in each and every of the forego-
ing cases said policy should become null and void; and the
said defendant avers that said insured, Conrad H. Smith, did
injure and impair his health by the use of alcoholic stimulants,
by means whereof the said policy of insurance in the eaid
declaration mentioned became null and void, and that it, the
said defendant, is not liable to the said plaintiff thereon, and
this the defendant is ready to verify, etc."
" Third plea, actio noriy etc., that one of the provisions in said
policy of insurance in the said declaration mentioned, was
that the self-destruction of the insured, whether voluntary or
involuntary, and whether he should be sane or insane at tlie
time thereof, was not a risk assumed by this company under its
contract, but that in every such case, the company should pay in
manner and form as provided in the policy a certain sum con-
stituting the so-called net reserve upon the policy, computed
as therein stated, which should be deemed to be payment in
full of all liability by reason of said contract; and the said
defendant avers that the said insured, Conrad H. Smith, did
die by an act of self-destruction within the aforesaid provis-
ions, to wit, by poisoning himself, by means whereof the
liability of said defendant upon the said policy of insurance in
the said declaration mentioned, has become and is so far
reduced that the said defendant is liable to said plaintiff
thereon only to the amount of the net reserve already men-
tioned, which amount is readily ascertainable by a mathemat-
ical calculation upon the mortality tables named in said policy.
Third District — November Term, 1890. 571
^ — — — - — — - - . ^ ^^
Conn. Mut. Life Ins. Co. v. Smith.
and whicli amount the defendant is ready and willing and now '
oflPers to pay, and this the defendant is ready to verify, etc."
First replication to second plea, that the insured, Conrad
H. Smith, did not injure or impair his health by the use of
alcoholic stimulants in manner and form as in said second plea
averred, and of this the said plaintiff puts herself upon the
country, etc. Similiter by defendant.
Second replication to the second plea, that before and at the
said time when, etc., in the second plea mentioned, with full
knowledge that the said Conrad H. Smith used alcoholic
stimulants as in second plea is alleged, the said defendant
solicited the payment of the annual premiums upon said
policy of insurance, and collected and received the same as
the same became due and payable, and thereby the said de-
fendant then and there waived the observance or perform-
ance by the said Conrad H. Smith of the said condition and
provision in the second plea mentioned, and this the plaintiff
is ready to verify, wherefore she prays judgment, etc. Gen-
eral rejoinder to second replication to second plea.
First replication to third plea, that the said Conrad H.
Smith did not at the time, when, etc., purposely or inten-
tionally poison himself and therefrom die, by an act of self-
destruction in manner and form as in said third plea is alleged,
and of this the said plaintiff puts herself on the country, etc.
General demurrer to plaintiff's first replication to third
plea.
Order overruling demurrer of defendant to the plaintiff's
first replication to the third plea; election of defendant to
abide by its demurrer.
Second replication to third plea, that the said Conrad H.
Smith did not come to his death by an act of self-destruction
in manner and form as in said third plea alleged, and of this
the said plaintiff puts herself upon the country, etc. /Siwili-
ter by defendant. The errors assigned and relied upon by
appellant are thus stated in the brief of counsel:
" Differently and concisely stated, the errors complained of
by the appellant, are substantially, that the court erred in over-
ruling the defendant's demurrer to the first replication to the
572 Appellate Courts of Illinois.
Vol. 39.] Conn. Mut. Life Ins. Co. v. Smith.
* third plea; that it was error to refuse to receive evidence
under the second replication to that plea; that the overwhelm-
ing weight of the evidence before the jury, and practically
all the evidence, is opposed to flie general verdict and some
of the special findings; that the court should have set aside
the verdict and sustained the motion for a new trial; and that
upon the whole record, the judgment is so clearly contrary to
law and to the weight of the evidence that this court should
reverse it." The clause in the policy in reference to self
destruction, upon which the third plea was founded, is as
follows:
"4th. That the self destruction of the insured, whether vol-
untary or involuntary, and whether he be sane or insane at the
time thereof, is not a risk assumed by this company under
this contract; but in every such case the company will pay in
manner and form as hereinbefore provided, only the then net
reserve upon this policy, according to the Combined Experi-
ence Table of Mortality, assuming four per centum compound
interest, deducting therefrom any indebtedness on account of
this policy, and shall not be deemed or held liable for any
greater sum or payment; and the payment of said sum sliall
be a full discharge of all liability by reason of this contract."
We think the demurrer to the first replication to the third
plea was properly overruled. The third plea is to have the
same effect and be treated as though it had in express terms
charged that Smith had intentionally poisoned himself, and
the first replication to that plea was in fact a denial of that
charge and properly ended to the country.
The demurrer to this replication was an admission that the
deceased did not intentionally poison himself, and when appel-
lant stood by its demurrer, it took that issue out of the case,
in the trial court, and hence it was not error for the Circuit
Court to refuse the evidence offered under the second repli-
cation to the third plea.
Unless the third plea is to have the meaning we have given
it, it could form no issue in the case.
If it is meant to assert by such plea when it is said, " the
said insured did die by an act of self destruction within the
Third District — Novembeh Term, 1890. 673
— ■ — \ ^ — -
Conn. Mut. Life Ins. Co. v. 8mith.
aforesaid provisions, to wit, by poisoning himself," tliat it was
accidental and not intentional, then the plea would not cliarge
an act of self destruction within the language of the provis-
ion of the policy.
It is perversion of language and an absurdity to say that
one can destroy himself by accident, and with no intention so
to do, unless it should be the direct result of negligence on
his part.
If a person accidentally fall into the water and is drowned,
or take poison supposing it to be a harmless and proper
drink, and thereby dies, no one would think of saying
that snch person had died by an act^of self destruction.
Mutual Life Insurance Co. v. Terry, 15 Wall. 680; Life InsuF-
aince Co. v. Broughton, 109 U. S. 121; Suppiger v. C. M. B.
Ass'n, 20 111. App. 602.
Had appellant desired to raise the question before the jury
as to wliether the deceased intentionally took poison to
destroy his life, this replication fairly and substantially pre-
sented such issue; but by demurring to it, we suppose .appel-
lant desired to insist that the assertion on the part of appel-
lee that the deceased did not take the poison for the purpose
or with the intention of taking his life, was no sufficient
answer to the third plea.
We have carefully considered all the evidence, and think it
was sufficient to warrant the verdict of the jury. The ques-
tion of waiver set forth in the second replication to the
second plea was fairly presented to the jury by the evidence,
and we see no good reason for interfering with the conclu-
sion reached by theni.
In the oral argument it was urged that appellee's instruc-
tions are faulty in not attempting to define what would
constitute a waiver. Upon examination we find the same
objection, if it be one, in appellant's instructions.
The instructions of both appellant and appellee use tlie
expression, "if the jury believe that the company did, or did
not, waive the provision of the policy in reference to excess-
ive drinking," as words well understood and needing no
explanation, and we can not believe that appellant has been
574 Appellate Courts of Illinois.
Vol. 39.] ' Rockford Ins. Co. v. Wright.
injured thereby, or that it has any jnst ground of com|>]aint
upon tliis point.
We think substantial justice has been done and the judg-
ment of the Circuit Court will be affirmed.
Judgment affirmed.
The Rockford Insurance Company
V.
Benjamin F. Wright.
FWt Insurance — Policy — Conditions — Vacancy — Waiver — Evidence-^
Instructions*
1. A technical defense is valid if supported by the evidence.
2. A building insured as, and leased for a store room, in the process of
ordinary preparation — not repair — for such purpose, is not vacant or unoc-
cupied .
3. Where an insurance company has, by its agent, received notice of
the vacancy of a building insured therein, and said agent assures the policy
holder that it is *'ali right and we will take care of it," it can not, in case
of loss during vacancy, insist upon the same as a breach of the contract,
and thus avoid payment.
4. It is not necessary that every instruction given in a case, should be
a full and complete statement of the rules and principles of law involved.
«
[Opinion filed June 12, 1891.]
Appkal from the Circuit Court of Morgan County; the
Hon. Ctbus Epler, Judge, presiding.
Messrs. Brown & Kirby, for appellant.
Messrs. Morrison & Whitlock and O. A. Be Leitw, for
appellee.
Wall, J. Action upon a policy of insurance. Judgment
for plaintiflF for $1,575.
Two questions are presented by the record:
Third District — November Term, 1890. 575
Rockford Ins. Co. v. Wright.
1. Was tlie property vacant or unoccupied within tlie
meaning of the policy?
2. If it was so vacant or unoccupied, was there a waiver
of the objection?
Both questions were solved against appellant by the ver-
dict of the jury. .
As to the first we are inclined to the opinion that the con-
clusion reached was the correct one.
The building was designed for mercantile purposes and was
insured to be so used. It had been vacant for some time but
was leased to a new tenant who proposed to place therein a
stock of merchandise as soon as the room could be cleaned
and made ready.
The tenant had possession and was having the room
cleaned, and had left in the room the implements and tools
used for that purpose. During the night a fire broke out in
another part of the square which extended to this building
and destroved it.
It is rather a narrow view that the building, under the cir-
cumstances, was vacant or imoccu])ied. The object of the
insurer in stipulating for occupancy is to secure additional
vigilance and assistance in preventing and extinguishing fire,
and in all cases tlie occupancy is to be according to the use
for which the building is intended. A store room is closed
during the night, and had this room been full of goods, there
would have been practically the same condition as there was
so far as actual occupancy was concerned.
Having been leased for that purpose, and being then in the
process of ordinary preparation — not repair — it was not
vacant or unoccupied if those terms are given a reasonably
fair and liberal meaning. Wood on Fire Ins., 8ec. 91.
As to the second point, whether there was a waiver, it is
not material to inquire if the foregoing view is correct. But
conceding it is not, then whether there was a waiver or
whether the company, by its knowledge, through its agent, of
the situation, is estopped to make the defense, is a mere ques-
tion of fact which is settled by the verdict, and we think,
after fully considering the testimony, there is no occasion to
576 Appellate Courts of Illinois.
■i . . . ■ I ■ I m
Vol. 39.] Rocliiord Ins. Co. v. Wright.
*
interfere with the conclusion of the jury in this respect. The
loss was in no waj caused by the alleged vacancy, and there-
fore the defense is purely technical, though none the less
valid if supported by the evidence.
The jury chose to believe the testimony of the plaintiff
that he notified the agent of the condition of the property,
and that the agent made the reply as stated.
Though there is serious conflict as to this point, it may be
said that the version given by the plaintiff is by no means
unreasonable. Indeed it is quite in accord with common
experience, and we can not say the jury should have disbe-
lieved it.
It is insisted that the court erred in giving the third instruc-
tion asked hy plaintiff. The ground of objection stated in
the brief is that it was calculated to mislead the jury, and to
induce them to suppose that Brown, the agent, had power to
waive a forfeiture. Without stopping to discuss the point
whether the agent had power to do so or not, we think such
is not the purport of the instruction. It merely advised tlie
jury that vfon a certain state of facts, to wit, notice to the
agent of ti e condition of the property and his assurance that
it was '' all right and we will take care of it," and reliance bv
plaintiffs upon such assurance, then the company could not
insist upon a forfeiture by reason of such facts. In other
words, after the company had by its agent received the notice,
and by him had given the assurance referred to, it can not
permit the policy to remain uncanceled, and then when a lire
occurs set up the right to forfeit because the building was
vacant or unoccupied. We think ti^ere is no substantial
ground of complaint in reference to this instruction.
It is also urged that the fifth instruction for the appellee
was erroneous, the objection stated in the brief being that it
left the jury to determine, as matter of law, what constituted
an occupation consistent with the uses for which it was
insured.
Turning to the instructions given at tlie instance of appel-
lant we find the court very fully advised the jury as to what
occupation would be consistent, etc.
Third District — November Term, 1890. 577
Sevan v. Atlanta National Bank.
Indeed, we think tlie appellant received from the court a
more favorable statement in this respect 'than it could strictly
have required.
It is not necessary that in every instruction there should be
a full and complete statement of the principles and rules of
law involved. Such a course would render the practice of
giving instructions more imperfect than it now necessarily is
under our system. Conceding that this instruction leaves
something for the jury to supply in the way of a definition,
the want is very amply met in several of those given at request
of appellant.
But we do not see that there is really any fault. The occu-
pation must be consistent with the purposes for which the
building was designed and insured, and so the court told the
jury. It could hardly have said more without invading She
province of the jury to determine whether under the facts
there was such occupation. Nor do we think the language
of the instruction would mislead the jury as to what was the
issue referred to therein, or that it erred in calling special
attention to certain facts therein set forth, as suggested by
counsel.
No other points are made in the brief and upon considera-
tion of the whole case we are of opinion that substantial jus-
tice has been done by tlie judgment. It will be affirmed.
Judgment affirmed.
John L. Bevan, Administrator, |,^, |^;
V. '~
The Atlanta National Bank.
NegottahU Instruments^ Note — Signature — Forgery — Evidence — Wit-
tie sees,
1. Where a witness has testified in the usual way to the gennineness of
a disputed signatare, it is not proper, upon cross-examination, to submit to
him others known to be genuine for comparison with it, and a statement to
the jury of the difference between them as they may appear to him.
You XZXIX 87
578 Appellate Courts of Illinois.
VoTi.>39.1 Bevan v. Atlanta National Bank.
2. The authorship of a Mrritin^ may be shown by other circumstaDces than
the likeness or unlikeness of a given handwriting? to that of the aiiejrei]
writer, such as a marked peculiarity in its spelling or style of composition
characteristic of the allegrd writer.
3. In an action brought to recover upon a promissory note, the defense
being that the name of one of the alleged signers thereof, a person deceased,
was a forgery, this court holds as proper the exclusion of several questions
sought to be asked certain witnesses upon cross-examination, touching the
difference between signatures submitted, and others, as to the ownership bv
them of similiir notes, and declines to interfere with the judgment for the
plaintiff.
[Opinion filed June 12, 1891.]
In error to the Circuit Court of Logan County; the Hon.
George W. Herdman, Judge, presiding.
Messrs. Beach & IIodnett, for plaintiflf in error.
First: The notes and order signed by Mrs. Williams upon
which the witnesses based their knowledge of her signature
and which showed a peculiarity in spelling, were admissible.
Brooks V. Tichbourne, 5 Exchequer, 590; 16 Central L. J. 102.
Second: The admission in evidence of the conversation
between the witness Foley and Mrs. Williams, was error. 2
Smith's Leading Cases, 1011; Thompson v. Drake, 32 Ala. 99.
Third : The court erred in restricting the cross-examination
of the witnesses. Bay v. Bell, 24X11. 441; Faulk v. Kellums,
64 111. 188; Melvin et" al. v. Hodges, 71 111. 422; Gitchcll v.
Ryan, 24 111. App. 372; First Greeuleaf on Evidence, Sec. 446;
Thompson on Trials, Vol. 1, Sec. 406 and 450; People v. Ben-
son, 52 Cal. 380.
Fourth: To entitle the plaintiff to recover, the plaintiff's
case must be proven by a preponderance of the evidence.
Failing to do so a verdict in favor of the plaintiff will be set
aside. Lincoln v. Stowell, 62 111. 84; Peaslee v^ Glass, 61 111.
94; Boudrcau v. Boudrcau, 45 111. 480.
Messrs. F. L. Capps and Blinn & IToblit, for defendant
in error.
The law of this State is that the genuineness of a signature
can not be proved or disproved on the trial of a cause by
comparing it with another signature not in the case, whether
Third District — November Term, 1890. r579
Bevan v. Atlanta National Bank.
the signature sought to be compared with it is admitted to be
genuine or not. Gitchell v. Ryan, 24 111. App. 375; Kernin
V. Hill, 37 111. 209; Melviu v. Hodges, 71 111.425; Massey v.
Farmer's National Bank, 104 HI. 333; Snow v. Wiggin, 19
111. App. 543.
The cross-examination of a witness must be confined to the
issue on trial, and all evidence calculated to mislead the jury
from the real issue should be excluded. Holloway v. Johnson,
23 111. App. 332; Hanchettv. Kimbark, 11,8 111. 128; 1 Green-
leaf on Ev., Sec. 51-52; 1 Wharton on Ev., Sec. 29; 1 Best
on Ev.jScc. 251; 1 Philh'ps on Ev., Sec. 748; Evans v. George,
80 HI. 51.
Pleasants, J. This was an action of assumpsit against
plaintiff in error upon a promissory note for $1,000, purport-
ing to be signed by C. E. Pratt and Alice Williams, to which
he pleaded the general issue sworn to. Verdict and j udg-
ment for plaintiff below for $1,087.90, motion for a new
trial having been denied and exception thereto duly taken.
The defense was that the name of decedent signed to the note
was forged. Upon that question there was a conflict in the
evidence which makes the finding conclusive. No complaint
is made in respect to the instructions. Plaintiff in error
relies for a reversal of the judgment upon the exclusion of
evidence offered by him.
Several witnesses who testified to their knowledge of her
handwriting and signature from seeing her sign other papers,
and to their belief that the signature in question was genuine,
had their attention called on cross-examination to certain
notes, and were asked if they were not the papers from which
their knowledge of her handwriting was derived; whether her
name as signed to them was not spelled and written as Alliee
(double e); whether the signature was or was not like that on
the note in suit, and to state tlie difference, if any. To each
of these questions objection was made and sustained.
The tendency of the proposed cross-examination was to
rebut the evidence in chief — which was the usual and proper
kind of proof of handwriting, namely, the opinion of witnesses
acquainted with the party's hand through other specimens —
580 Appellate Courts of Illinois.
Vol. 39.] Bevan v. Atlanta National Bank.
by a comparison of the signature in question with others
known to be genuine. It is true that the comparison was to
be made in the first instance by the witness, and the diflFer-
ence between the writings compared, as they appeared to him,
was tlien to be stated by hitp to the jury, but the result or
effect was the same in kind as of a direct submission of the
papers to the jury for their inspection and comparison. And
that such was the object and purpose of the proposed cross-
examination, we think, appears on its face, and by the offer of
the papers themselves, which wa^ made by the counsel and
refused by the court.
It is said that the propriety of the exchided questions is
shown by the ease of Melvin v. Hodges, 71 III. 422. That was
a suit upon a note, in which the defendant denied the genu-
ineness of the signature. He called a witness who testified
in chief that he was well acquainted with Melvin, had gone
to school with him in Tennessee, had seen him write often,
was well acquainted with his writing when young, was
absent from liim for eighteen years, had known him and seen
him write during the last four years, and would not take the
signature to the note to be his handwriting. The court then
permitted him, at the instance of plaintiff, to examine Mel vin's
signature to the plea, which was admitted to be genuine, "as
a basis for testing the accuracy of his observation and mem-
ory." For that purpose the Supreme Court say it was
proper; that it was " not to. prove a signature by comparison,
but to test the accuracy of the witness' memory;" and that
" the only effect the e'xainination could have would be to
enable the witness to determine how accurate and reliable
was the impression of Melvin's signature, as fixed in his
memory, with the views of confirming or modifying his
previously expressed opinion in regard to the signature in
controversy."
There the witness had been familiar with the party's writ-
ing many years before, but his recent opportunities had been
slight. His opinion was founded mainly on his memory of
those he had when they were boys together, and he did not
state it as very positive or clear. Ho was permitted to look
Third District — November Term, 1890. 681
Bevan v. Atlanta National Bank.
at a recent signature, presumably near enough in date to that
of the one in question to be marked by the same character-
istics, and then say whether he would adhere to or modify
the opinion he had previously expressed and which was
based on recollection of what ho knew in his boyhood about
the party's handwriting — a thing that undergoes more or
less of change with the' lapse of time. Certainly this was
not a comparison, even in the mind of the witness, between
the signature in question and another to prove or disprove
the genuineness of the former; but a comparison of the latter
with still other writings of the same party as he remembered
them after many years, for the sole purpose of having him
determine how far he c6uld rely on tliat remembrance as the
ground of an opinion upon the genuineness of any recent
writing said to be Melvin's but disputed. He was not asked
to give the jury any means or data for any comparison by
them of the writing in question with any other. The sole
object and effect was to test the reliability of the opinion he
had stated, and to modify or confirm it as the test should
require.
In the case at bar the object and effect of the questions
excluded was, so far as related to the witnesses, to compel a
retraction of their opinion that the disputed signature was
genuine by a comparison of it with others that were known
to be genuine, but claimed to be unlike it, and as related to
the jury, to give them information of the differences, if any,
and thus force a comparison by them. We therefore think
the authority cited is not in point.
But it was further claimed that the deceased habitually
spelled her given name differently from the way it was
spelled on the note in suit, and that to prove it the other
notes referred to were admissible; citing Brooks v. Tichborne
5 Exchequer, 590; 16 Cent. Law Jour. 112; Pate v. The People,
3 Gilm. 644, 659. In the first, which was an action on the
case for libel, in charging the plaintiff with libel the writing
in question contained the defendant's name, written " Titch-
borne;" and to prove the plaintiff wrote it, several letters
which were written by him and showed the same misspelling
582 Appellate Courts of Illinois.
Vol. 39.] Bevaii v. Atlanta National Bank.
of defendant's name were oflFered in evidence, bnt excluded;
for which ruling a new trial was awarded. It was held that
the habit of so misspelling the name was some evidence of
the authorship of the disputed writing — its value depending
on the degree of peculiarity of the misspelling and the num-
ber of occasions on which the party so misspelled it; that
the habit miglit be shown by proof of oral misspelling as
well, but where it was writt'^n, the writing was proper evi-
dence of it.
It is not doubted that the authorship of a writing may be
shown by other circumstances than the likeness or nnlikeness
of the handwriting to that of the alleged writer, as, a
marked peculiarity in its spelling or style of composition
characteristic of the alleged writer. Such a fact is as indej^end-
ent of its likeness or imlikeness to his handwriting as would
be his admission of its authorship, though not so convincing;
and proof of such fact may be made in any way that would
be appropriate in other cases. Pate v. The People, which
was an indictment for forgery, furnishes a good illustration.
One of the papers the defendant was charged with forging
was a receipt as follows :
"May 13th, 1844: I Hav Ths day Keceived of Alonzo
Pate, fourteen Hundred dollars Being paid on a Track of land
as witness my Hand and Seal," eta Another was a contract
for the conveyance of land, which was in the same general
style. Suppose a dozen witnesses had testified that they were
well acquainted with the defendant's handwriting, from suf-
ficient means of knowledge, and believed those papers to be
in it, could there be any question of his right, without deny-
ing their likeness to his writing, to introduce for the purpose
of disproving his authorship of them, a hundred receipts and
contracts written by him before and after May 13, 1844, in
the usual course of his business as a conveyancer, and show-
ing a perfectly correct spelling and correct use of words,
capital letters and punctuation marks? And as the marked
unlikeness in these respects would tend to disprove it, so a
marked likeness in peculiarities of spelling, using capitals and
punctuation marks would tend to prove it^ independently of
Third Distuict — November Term, 1890. 583
Bevan v. Atlanta National Bank.
their likeness or unlikonesg in otheref. The two cases cited
may be authorities to that extent, but no further on this
subject.
We think this was no such case. Here was no such char-
acteristic habit or such marked peculiarity as would throw
any light upon the question. The claim is that she habitu-
ally wrote her given name as "Alliee" (double e). The
evidence, so far as received, is that sometimes she did and
at others did not. Her name, as she pronounced it, was
"Alice." She habitually misspelled it by using two letters
" 1." The note in siiit was signed accordini^ to her habit in
that particular. It was also phonetically right, and we can
not believe she ever intended to write the last syllable without
a sibillant letter to represent the sound she distinctly gave it;
and, therefore, we infer tliat where the first of the last two
letters had the appearance of an " e," it was by her intended
for the letter "c," and so was not a case of misspelling, but
simply of peculiarity in her formation of that letter in that
connection. It hardly amounted to a peculiarity. That
letter, in almost everybody's writing, is quite commonly so
formed that but for the connection it would be taken for an
"e." (The writer hereof notices it in each of the words
"evidence," "received," "pronounced,'' "appearance" and
" notices " — being all of those on the page he is writing in
which it immediately precedes the letter " e ".) It is doubt-
less largely accidental, dej)ending on the pen, ink or paper
used, or other accidental condition, rather than the habit or
purpose of the writer. But if it were such a peculiarity,
that is, of the kind that is the subject of the comparison, which
our law disallows, and is not an independent fact like a pecul-
iar habit of spelling or phrasing, wo think the ruling was
proper.
PlaintiflE's witnesses were asked, on cross-examination,
whether they held any note purporting to be signed by Mrs.
Williams and C. E. Pratt, in respect to which the genuine-
ness of the signature of her name was disputed, or were inter-
ested in any bank that held such a note. One of them at least
answered that he did hold such a note, wiiile in the case of
584 Appellate Courts of Illinois.
Vol. 39.J Bevan v. Atlanta National Bank.
others the questions were objected to, and the objection sus-
tained.
It is not pretended that the holding of such a note or
interest would have disqualified them. Tlieir interest was not
in the evaut of this suit, nor could the record be used in evi-
dence for them or the bank in a suit upon such a note, but
was at most in the question alone. Nor is it clear that it
would have shown an interest in the question. Pratt was a
son-in-law of Mrs. Williams, and lived on a farm adjoining
hers. Their relations were very intimate. The notes referred
to were separate and independent transactions. The holder
of one might be in no way concerned about the question of
the signature of her name to any other. The evidence of it,
as to his, might be entirely different from that relied on as to
them. As bearing upon the bias of the witness, if it had any,
the evidence excluded was so uncertain and remote, and would
have so tended to introduce collateral issues and improper
prejudices one way or the other, that we think the court may
be justified in keeping it out of the case.
The statement of her nephew, Judge Foley, of what she
said about the likelihood of her losing anything by Pratt,
while it did not touch the particular transaction here involved,
in it9 connection tended to show the personal and business
relations between her* and him, which was proper, and could
hardly have had any further eJBfect upon the minds of the
jurors.
Counsel make no point, in their brief or argument, upon
the judgment as to costs, and therefore we have not noticed
it. Perceiving no material error in the record the judgment
will be aflii*med.
Judgment affirmed.
Third District — Novembee Term, 1890. 585
Hewitt V. Hexter & Co.
Egbert G. Hewitt
V.
S. Hexter & Co.
NegoiiahU Instruments — Note — Payment — Limitations,
m
In an action brought to recover a balance claimed to be due upon a prom-
issory note, the defense being payment, and the Statute of Limitations, the
judgment being for the plaintiffs, this court holds, in view of affidavits filed
by the defendant, that a new trial should have been granted upon the
ground of newly discovered evidence.
[Opinion filed June 12, 1891.]
Appeal from the Circuit Court of Menard County; the
Hon. George W. Heedman, Judge, presiding.
Mr. T. "W. McNeely, for appellant.
Mr. Charles Nusbaum, for appellees.
Conger, P. J. On the 3d day of December, 1876, Robert
G. Hewitt gave his note for $100 to his nephew, Louis C.
Hewitt, and this suit is for recovery of the balance claimed
to be due on this note, it having been assigned to appellees.
The defenses were payment and the Statute of Limitations.
There were two credits upon the back of the note which read
as follows: "Feb'y 1, 1879, credit on the within note $9;"
*' July 28, 1880, a credit of $3 on the within note."
The first credit of $9 was claimed to be for a quarter of
beef, and the one of $3 was claimed to be for one day's work
of one George Dorand, who it was claimed by Louis C.
Hewitt was in the employ of appellant, and with the team of
appellant worked for said Louis C. Hewitt, for which he gave
appellant the credit of the $3.
Appellant denied both these credits, claiming that the first
was a present, or rather intended as compensation to said
Louis C. Hewitt for pasturing stock of appellant, while as to
the last ho denied that Dorand ever worked for him at all.
586 Appellate Courts of Illinois,
Vol. 89.] Hewitt v. Hexter & Co.
The evideDce is not very satisfactory as to these credits, bnt
we should not interfere with the judgment for that reason.
And we think the court, under the weak and unsatisfactory
character of the evidence, should have granted a new trial
upon the ground of newly discovered evidence.
On appellant's motion for a new trial he filed the following
affidavits :
" State of Illinois, )
Menard County. \
'•Kobert G. Ilcjwitt being first duly sworn, deposeth and says,
that upon the trial of the case of S. Hexter & Co. v. This
Affiant, Louis Hewitt, testified that about July, 1880, he
placed a credit of $3 npon the note in question in such suit
at the request of this affiant, and that such credit was for
work and labor of George Dorand, and a team, then done for
said Louis Hewitt at his request by said Dorand, and that
Dorand was then in the employ of affiant, and that Dorand
then had in such team the horses of affiant. That affiant
before such trial made due and diligent inquiries as to what
the credit of $3 was for, and was unable to find out or know
the same until Louis Hewitt swore t^e same on said trial.
That such testimony was a surprise to affiant; that affiant
did not pay said $3 to Louis Hewitt at any time, and did not
furnish the labor of said Dorand as stated by Louis Hewitt;
that affiant, after said trial on the 21st inst., went to the resi-
dence of said George Dorand, in Cass County, Illinois, and
that said Dorand informs affiant that he never worked for
said Louis Hewitt with or without a team at the request of
affiant, or in 1880, or at any other time, and that said Dorand
informs affiant that he will so testify, and affiant so believes.
And affiant makes the affidavit of said Dorand part hereof.
That affiant knew of no person by whom he could prove such
facts at the time of the trial, before or since, except said wit-
ness, Dorand, and did not know what he could prove by said
Dorand until after the trial. That said Dorand was during
the day of said trial more than ten miles from the court
house in Petersburg, Illinois, where such trial took place,
and that if a new trial is granted, this affiant believes he can
TniRD District — Novembeb Teem, 1890. 587
Ueil^itt V. Hexter & Co.
liave sucli witness, Dorand, present at a trial of this case at
the next term of this court, and that by his testimony he can
justly prevent any verdict herein beins^ found against him.
Tliat the affiant is not indebted to plaintiffs.
" K. G. Hewitt."
"Subscribed and sworn to October 22, 1890.
" Theo. C. Bennet, Clerk.
" State of Illinois, 1
"Cass County, j^'
" George Dorand being first duly sworn, on oath deposeth
and says: I never, at any time, worked for E. G. Hewitt a day
in my life at any kind of employment,
"Geo. G. Dokand.
" Subscribed and sworn to before me this 22d day of Octo-
ber, 1890.
" I. H. Stanley, J. P."
Said affiant being further sworn on oath, says: I never
worked a day for Louis C. Hewitt on account of R. G. Hewitt
at any time, but did work for said L. C. Hewitt on account of
Abijah S. Nottingham.
" George Dorand.
" Subscribed and sworn to before me this 22d day of Octo-
ber, 1890.
" I. H. Stanley, J. P."
*
Without commenting on authorities cited in the briefs, or
attempting to lay down any general rule, we feel satisfied that
under all. the circumstances of this case, justice required that
a new trial should have been granted.
The judgment of the Circuit Court will be reversed and
the cause remanded.
Heveraed and remanded.
588 Appellate Courts of Illinois.
Vol. -39.] Northrup v. Smothers.
30
588
45
3791
, 46
50.
George Northrup
V.
William J. Smothers.
Jurisdiction— Justiee^Iit jury to Stock—Sec, 13^ Chap. 79, R. S. — Prac-
tice— Evidence.
1. Bad grammar or composition will not vitiate a writing where the
meaning is clear.
2. A justice may try an action for injury to stock, in any form appro-
priate to the injury done.
3. Upon appeal from the finding of a jury in a case tried before a justice,
he failing to enter a formal judgment therein, the successful party may for
such reason require a dismissal of the appeal, but a motion {x^ dismiss the
suit amounts to admitting jurisdiction as having been obtained by the
appeal; and where the case is of such a kind that the court below had origi-
nal jurisdiction, and to which such party could submit his person without
process, he should not, having done so. be allowed to question the jurisdic-
tion thereof.
4. In an action brought to recover for injury to certain hogs, this court
holds that the plaintiff excepted at the proper time to a certain ruling of
the trial court, and that in view of the evidence, the judgment for the
defendant can not stand.
[Opinion filed June 12, 1891.]
Appeal from the Circuit Court of Scott County; tlie Hon.
Geoeub W. HekdmaNj^ Judge, presiding.
Messrs. James Callans and Mokrison & Whitlock, for
appellant
Ml*. Ja^es M. Kigos, for appellee.
Pleasants, J. Appellant brought this suit before a justice,
and being defeated by the finding of the jury, appealed to
the Circuit Court No formal judgment was entered by the
justice. In the Circuit Court a motion was made by tlie '
defendant to dismiss the suit, but on what ground does not
appear. The motion was denied and the case continued. At
the next term, after the jury was impaneled, the defendant
Third District — November Term, 1890. 589
-» -
Northrup v. Smothers.
asked that plaintiflE be required to state his ease and be con-
fined thereto in his evidence. PlaintiflF's counsel then stated
it to be that defendant turned out his hogs, knowing that
they were infected with cholera, and with intent to commu-
nicate the disease to those of hia neighbors, particularly those
of the plaintiff; that he was requested to put them up but
refused, and that they did infect plaintiff's hogs, of which a
number by reason thereof -had died. Thereupon the defend-
ant moved the court to dismiss the suit, on the ground that a
justice has no jurisdiction of the subject-matter of the case
as stated; which motion was sustained and judgment accord-
ingly entered. This is an appeal from that judgment
It is contended on behalf of appellee that the only remedy
for the wrong stated, is an action on the case; that if the jus-
tice had no jurisdiction of such an action the Circuit Court
could have none on appeal, and that the justice had none;
citing W. IT. Telegraph Co. v. Dubois, 128 111. 254-5.
The statute confers jurisdiction on justices of the peace " in
actions for damages for injury to real property, or for taking,
detaining or injuring personal property" (Sec. 13, Chap. 79,
R. S.), but not in actions on the case generally. Therefore
while they may not lawfully try an action for slander, they
may for injuring hogs, in any form appropriate to the injury
done. In the case cited the telegraph company was sued be-
fore a justice of the peace for negligence in respect to a dis-
patch sent to plaintiff, whereby he was misled as to the price
at which the sender would deliver to him a car load of apples,
and judgment was rendered against it by the Circuit Court
on appeal. The Supreme Court held that it was under no
contract obligation to the receiver of the dispatch; that his
only remedy was by an action on the case, and that '*' under
our statutes justices of the peace have no jurisdiction* of an
action on the case for such an injury as is here involved."
The action there was not for taking, detaining or injuring
personal property. If it had been, we apprehend that the
form of action — in case — which was appropriate, would not
have been held a bar to the jurisdiction. The opinion of
this court has been fully stated in C. & A. R R Co. v.
590 Appellate Courts of Illinois.
Vol. 39.] Northrup v. StnotherR.
Calkins, 17 111. App. 55; Skinner v. Morgan, 21 111. App. 209;
Workman v. Neal, 21 111. App. 293. We yet see no reason
for changing it.
It is also suggested that the Circuit Court had no jurisdic-
tion, because the justice had rendered no judgment. That
might have required the dismissal o{ the appeal had appellee
asked it. His motions, however, were to disniiss the suit,
thereby admitting the jurisdiction as having been obtained
by the appeal; and after the first was denied he voluntarily
went to trial. The case was of a kind of which the Circuit
Court had original jurisdiction, and to which he could submit
his person also, without process, if he chose so to do, and
having done it he ought not to be now heard on this point.
Randolph County v. Eiills, 18 111. 29; Birks v. Houston, 63
111. 77; Allen v. Belcher, 3 Gilm. 594.
Again, it is said, the record does not affirmatively show that
appellant excepted, at the proper time, to the ruling of which
he now complains. It appears that this ruling was made and
the case disposed of on May 7, 1890; that the bill of exce^>-
tions is not dated but was filed on the 8th, and that it states
the act of excepting in the present tense: "to which ruling
of the court to dismiss said suit the said plaintiff excepts!*^
To be available, the exception should be taken at the time
of the ruling and the bill should affirmatively show it. This
is usually shown by the statement that the party bj^ his coun-
sel "then and there excepted." It is claimed that in the
absence of a date to the bill, the expression used in this case
must be taken to refer to the time when it was filed, which
was the next day after the cause was disposed of; and in sup-
port of this proposition counsel cite Gibbons v. Johnson, 3
Scam. 61, 63. In that case the court said: "The record
does not show that the plaintiflf excepted to the decision of
the court at the time the instructions were given, or at any
time during the progress of the trial. On the contrary, t!ie
bill of exceptions was filed two days after the trial and judg-
ment, and in the conclusion of it it is stated, that * to all of
which opinions of the court, the plaintiff excepts,' eta, evi-
dently showing that the plaintiff then, for the first time,
excepted."
Third District — November Term, 1890. 591
Northmp v. Smothers.
That was a vigorously contested case upon a lost note, the
execution of which was denied. An appeal was taken from
the Probate Court, the venue was changed and *' mucli testi-
mony was introduced on the part of the plaintiff," which the
court instructed the jury was not sufficient to entitle him to
judgment. From these facts it may well be presumed that
the trial occupied more than one day, and that in the course
of it many more than one ruling was made against the plaint-
iff. Yet the bill of exceptions shows nothing about excei>
tions more than appears in its conclusion as quoted, which
states an exception to all, in a lump, as at one time and in the
present tense. Since a bill of exceptions is regarded as a
pleading and taken most strongly against the party presenting
it, the construction given it by the court may have been in
reason, as it must be accepted fn law by us, the proper one.
But in our view the circumstances and the statement of the
bill in the case here were materially different. The trial
occupied less than a day, only one ruling was made against
appellant, and therefore only one exception could have been
taken; time was given in which to file the bill; it must have
been asked before the bill was filed; the asking was in effect
notice tliat the exception was taken; the bill was prepared,
presented and signed before it was filed, and it was filed on
the next day after the ruling excepted to was made. These
circumstances constitute cogent proof that the exception was
in fact taken at the time of the ruling, and the use of the
verb in the present tense would indicate that the counsel who
prepared it intended and expected to have it filed on that day,
in which case the tense used would have been proper.
This intention and meaning of the word so used is made
more manifest and sufticiently certain by the use of another
verb in the same tense to denote the action of defendant's
counsel, which must have been taken the day before the bill
was filed, namely, his motion to have the suit dismissed. The
language of the bill is: **Upon this statement of the case
the defendant moves to dismiss the case, because," etc., and
after stating the motion was granted, and that the court there-
upon dismissed said suit, adds as above quoted: "To which
592 Appellate Courts of Illinois.
Vol. 39.] Village of Wapella v. Davis.
ruliDg of the court to dismiss said suit, the said plaintiff
excepts and p?'ay8 an apj)eal to the Appellate Coui-t, * * *
which appeal is allowed on condition of said plaintiff entering
into bond * * * and filing his bill of exceptions in thirty
days." This statement of defendant's action as present, of that
of the court following as past, and of that of plaintiff still fol-
lowing as present, may be faulty syntax, but bad grammar or
composition will not vitiate a writing where the meaning is
clear notwithstanding such faults. We think the bill, fairly
construed, states the exception as taken at the proper time.
Counsel treats the opening statement of plaintiff's case as
a declaration, strictly subject to the technical rules applicable
to the written pleading, and points out some defects therein
as such. We do not so view it, nor if we did, is any defect
suggested which would justify the judgment entered.
For the error committed in dismissing the suit the judg-
ment will be reversed and the cause remanded.
Heversed and remanded.
TuE Village of Wapella
V.
Vesselius Davis,
Munkqyal Corporations— Ordinances — Publication of— Proper Author*
ity — Evidence,
\, If, upon inspecting: a printed book or pamphlet of ordinances, it can
be determined from any part of it that it purports to be published by
proper authority, it is enough.
2. The fact that such ordinances, certified in accordance with Sec. 4
of Art. 5 of the * * Cities and Villages Act, " are printxid copies of thfl originals
instead of written, can make no difference as to their admissibility in evi-
dence in a given case.
3. Upon a suit brought by a municipality to recover from defendant
a penalty for failure to perform road labor on its streets, in conformity
with the requirements of one of its ordinances, this court holds as errone-
ous the exclusion of the book of ordinances thereof offered in evidence hy
the plaintiff, and that the judgment for the defendant can not etand.
Third District — NovEyjER Term, 1890. 593
Village of Wapella v. Davis.
[Opinion filed June 12, 1S91.]
Appeal from the Circuit Court of De Witt County; the
lion. Cykus Epler, Judge, presiding.
Messrs. Lemon & Monson, for appellant.
Messrs. Moore & Warner, for appellee.
Conger, P. J. This was a suit brought bj the village
against appellee to recover a penalty for failure to perform
road labor on the streets.
On the trial, appellant offered in evidence a printed pam-
phlet, pui'porting to contain the ordinances of the village. The
title page of the pamphlet reads: "Revised Ordinances of the
Tillage of Wapella, DeWitt County, Illinois, 1885." Section
thirty-seven of said ordinance was as follows :
" Sec. 37. This ordinance shall be printed and published
in book or pamphlet form, and at the foot of each shall ap-
pear the clerk's printed or written memorandum of the date
of the passage and of the publication of such ordinance, and
the same shall be known as the record book of ordinances of
the village of Wapella. Said board may have an indefinite
number of said books printed or written, and each and every
one thereof shall be taken and considered originals."
The memorandum, signatures and certificate at the foot of
said ordinance, is as follows: "Passed March 10, A. D. 1886,
approved March 12, 1886. J. M. Greene, President pro
tern. Attest : John E. Karr, village clerk. (Village seal.)
"I, John E. Karr, village clerk of the village of Wapella,
Illinois, do hereby certify that the foregoing is a true, and
correct copy of the original ordinance that is on file in my
office, and the same was published in pamphlet form, and fifty-
two copies returned to my oflice this 9th day of April, A. D.
1885. Attest: John E. Karr, village clerk. (Yillage seal.)"
Upon the objection of appellee the trial court refused to
permit the book of ordinances to be read as evidence.
f This we think was error. Counsel for appellee in tb<»ir
Vol. XXXIX 38
594 Appellate Courts qf Illinois.
Vol. 39.] Village of WapeJla v. Davis.
•
brief say: " Had tliere been printed on the title page of said
pamphlet, " Published by authority of the Board of Trustees
of the Village of Wapella," then it would have been admissiblo
under the statute, and it would have proven the passage and
publication of the ordinance.'^
By Sec. 4 of Art. 5 of the Cities and Villages Act, it is pro-
vided that *' All ordinances may be proven by the certificate
of the clerk, under the seal of the corporation. And when
printed in book or pamphlet form, and purporting to be
published by authority of the board of trustees, * * *
such book or pamphlet shall be received as evidence of the
passage and legal publication of such ordinances, etc.
To " purport " according to Webster means '' To intend to
show; to intend; to mean; to signify."
We are at a loss to perceive how the book of ordinances with
Sec. 37 above quoted, certified to by the village clerk, with
the corporate seal attached, does not as fully show that such
book or pamphlet was intended by the village board to be
published by their authority, as if the title page itself had
purported to show it.
If, upon inspecting a printed book or pamphlet of ordi-
nances, it can be determined from any part of it that it ] ur-
ports to bo published by the proper authority, that is enough.
Again, it was admissible under the first provision of Sec. 4,
supra. All of the ordinances contained in the pamphlet were
in the very language of the law, " proven by the certificate
of the clerk under the seal of the corporation."
The fact that such ordinances so certified by the clerk were
printed copies of the original instead of written, could make
no difference.
It is also objected that the ordinance, under which suit was
brought, was void because not in conformity with the statute.
This ordinance provides that "every male inhabitant of said
village over the age of twenty-one'' years, and under the age
of fifty years, shall be required to labor two days each on the
streets and alleys of said village each year (except idiots, luna-
tics and those physically unable to perform such lahor^ and
such others as are exempt by law)," and that the street com-
Third District — November Term, 1890. 595
Wooley V. Yarnell.
miesioner " may also require them to furnish a tool or imple-
ment with which to perform such labor;" and that on failure
to comply with the notice of the street commissioner therein
specified, the guilty party shall be liable to the penalty, to
recover which this suit was brought. The statute gives the
village board power to require " every able-bodied male inhab-
itant," to labor on the streets.
We think a reasonable construction of the language of the
ordinance makes it substantially the same as the statute.
As to whether the provision of the ordinance requiring the
bringing of tools is within the power of the board to pass, is
not a question in the case, and need not be noticed.
We think the ordinance should have been admitted in evi-
dence, and for the error in sustaining the objection to its
introduction the judgment of the Circuit Court will be
reversed and the cause remanded.
lieversed and remanded.
James S. Wooley
V.
William R. Yarnell.
Mortgages — Foreclosure — Umitations — See, SsOt^Chap. 83^ B. S. —
Removal of Mortgagor to Another State.
The fact that a mortgragor of property located in this State, removed
to and has resided in another State for such a length of time as will defeat an
action at law npon the note given by him, will not affect the right to pro-
ceed in chancery to foreclose.
[Opinion filed June 12, 1891.]
Appeal from the Circuit Court of Christian County; the
Hon. Jacob Fouke, Judge, presiding.
Messrs. J. C. Essick and J. C. McBbidb, for appellant
Messrs. Gross & Broadwell and J. H. Tarnbll, for ap.
pel lee.
i
596 Appellate Courts of Illinois.
Vol. 89.] Wooley v. Yarnell.
Conger, P. J. This is a bill in chancery to foreclose a
mortgage. The principal facts are, on January 1, 1869, appel-
lant, ^James S. Wooley, lived at Pana, Illinois, where he owned
a fann. On that day he borrowed from John F. Spanlding,
who resided in Boston, Massachusetts, SI, 500, and executed
and delivered to Spaulding the following note:
"11,500. Pana, Illinois, January 1, 1869.
"Five years after date, I promise to pay John P. Spauld-
ing, or order, fifteen hundred dollars, for value received,
with eight per cent interest, payable annually, and payable in
the city of Boston, Mass., and secured by a real estate mort-
gage, lawfully stamped.
"J. S. Wooley.''
On the back of which appeared the following;
** Interest paid to date, January 1, lb70. Without recourse.
"John P. Spaulding,
" E. W. Yarnell."
Wooley and his wife on the same day of the date of the
note executed a mortgage on their farm, to secure said note,
which was duly acknowledged and recorded.
About 1877 Mrs. Wooley died, and in August, 1881,
Wooley removed to and took up his residence in the State of
Kew Hampshire, where he still resides.
In 1889 Spaulding made a present of the note to Mrs.
Electa W. Yarnell, a daughter of Wooley, and she sold and
delivered it to appellee, William E. Yarnell, who files the bill
in the present case.
The Statute of Limitation of Illinois of ten years was set
up, but as we do not think that section applies, and as it is not
insisted upon by appellant in his brief, we shall not stop to
notice it.
Appellant in his brief says: This case involves but one
legal question. It is a question arising under our Statute of
Limitations. Sec. 20, Chap. 83, K. S., provides:
"When a cause of action has arisen in a State or Territory
out of this State, or in a foreign country, and by the laws
thereof an action thereon can not be maintained by reason of
the lapse of time, an action thereon shall not be maintained in
!
Third District — ^November Term, 1890. 697
Wooley V. Yamell.
this State." Under this section of onr statute appellant
pleaded as a defense his residence in tLe State of New Hamp-
shire for more than six years before the commencement of
this action; and the Statute of Limitation of New Hampshire,
which provides that '' actions of trespass to the person, and
actions for defamatory words may bo brought in two years,
and all other personal actions within six years, after the cause
of action accrues, and not afterward."
It is insisted by appellant that when Wooley removed to
the State of New Hampshire in 1881, and became a resident
of that State, a cause of action arose in the State of New
Hampshire against him upon the note, and that after the
lapse of six years such cause of action would be barred in New
Hampshire, and by virtue of Sec. 20, Chap. 83, of the Illinois
Statute, no action could be maintained in this State upon the
note, and cites Ilyraan v. Bayne, 83 111. 256, and Hyman v.
McVeigh (unreported), 10 Legal News, 157, in support of this
view.
In the latter case the Supreme Court say: "The words,
* when a cause of action has arisen,' as they occur in the
statute pleaded, should be construed as meaning, when juris-
diction exists in the courts of a State to adjudicate between
the parties upon the particular cause of action, if properly
invoked — or in other words, when the plaintiff has the right
to sue the defendant in the courts of the State upon the par-
ticular cause of action, without regard to the place where the
cause of action had its origin. This was the view taken in
Hyman v. Bayne, sujyra^ although not discussed at length in
the opinion, and we do not conceive that the question need
be discussed now." The doctrine as contended for by appel-
lant would seem to be supported by the foregoing language
so far as an action on the note alone is concerned.
But we are inclined to think that the decree of foreclosure
rendered by the court below may be sustained notwithstand-
ing the above language should be admitted to be sound law.
The present case is not an action on the note, but a pro-
ceeding in chancery to foreclose the mortgage. A proceeding
in revi^ of which the courts of New Hampsliire never did have
698 Appellate Courts of Illinois.
Vol. 39.] Wooley v. Yarnell.
jurisdiction, and for that reason, we think, is not included in
the provisions of Sec. 20 of our Limitation Act.
We are aware of the doctrine repeatedly announced by the
courts of this State, that a mortgage is but an incident to the
debt, and when the debt is barred, the mortgage is also barred
and can not be foreclosed. That this is the general doctrine
will not be disputed by any one. It rests upon the princi-
ple that a note and mortgage may be enforced separately or
together, and when those rights have both existed during the
life of the note, there is no hardship in holding that the mort-
gage dies with the note. But in the present case, if the doc-
trine of Hyman v. McYeigh is to govern, the courts of New
Hampshire may have had jurisdiction to collect the note, but
did not have to foreclose the mortgage, and therefore in
equity and good conscience it ought to remain a valid claim
against the mortgagor, enforcible by our law, even though the
note could not be collected by an action at law. While com-
pelled to recognize the rule laid down in Hyman v. McVeigh,
we are not disposed to extend it beyond the facts of that case.
We do not believe it to be sound law, that one holding a
mortgage security for his debt, which is ample, and upon
which he is willing to rely, without reference to the personal
responsibility of his debtor, and who proceeds, according to
the laws of this State, to enforce his claim (against the mort-
gaged property, can be defeated because the mortgagor may
have resided in another State for such length of time as
would defeat an action at law upon the note.
Believing that the decree of the Circuit Court in foreclos-
ing the mortgage was right, it will be affirmed.
Decree affirmed*
Third District — November Term, 1890. 599
Wabash R. R. Co. v. Speer,
The Wabash Railroad Company
V.
Mary E. Speer.
Bailroada — Negligence of— Unneeessafy Sounding of Whistle — CrosS'
ifigg — Personal Inju, ies — Contributory Negligence,
1. It is ordinarily nesrligence to fro npon a railroad track without using
the sennes to ascertain as to the proximity o£ trains.
2. A railroad company is liable for personal injuries arising from the
frightening of a team standing a safe distance from a crossing, through the
unnecessary sounding of the whistle of one of its engines.
[Opinion filed June 12, 1891.]
Appeal from the Circuit Court of Ford County; the Hon.
Alfred Sample, Judge, presiding.
Mr. George B. Burnett, for appellant.
Messrs. Cook & Moffett and T. H. Tipton, for appellee.
Wall, J. The point mainly urged by the appellant, is that
appellee did not use ordinary care to discover the approach of
the train. If this is a defense it must be because one desiring
to cross a railroad track should not approach witliin a certain
distance of it while a train is in sight.
It is negligence usually to go upon a track without using
the senses to ascertain whether a train is coming, but we know
of no rule of law or prudence forbidding one to go along the
highway towam a railroad ti*ack without such care. If before
going on the track he takes the precaution to know whether
Jie can cross in safety, he has done all that is required.
In this case the injury was occasioned, as appellee alleged,
by the unnecessary sounding of the whistle just as the train
reached the crossing, and while the team of appellee was
standing a safe distance from the track waiting for the train
to pass.
89 &99|
IMS 2441
/
1
600 Appellate CJourts of Illinois.
Vol. 89.] Sheets v. Wetsel. '
The team was frightened by the whistle, and turning sud-
denly, upset, the wagon throwing appellee violently to the
ground.
Appellant urges that it was negligence for appellee to be
there at that time, and that an instruction given at the instance
of appellee which assumed the contrary or ignored the impor-
tance of due care to observe the approach of the train in
coming to that point was erroneous. We do not so regard it
The appellee had a right to drive up to the point whereshe
stopped even though she knew the train was coming. She
had a right to expect, when she did so, that no unnecessary
Bounding of the whistle would occur, and she may well com-
plain if she was disappointed in that respect.
The view suggested by appellant would require pei^sons to
stop at a greater distance from the track than would be nec-
essary if the train men are bound to act with proj^er care and
discretion in the use of the whistle. The judgment will be
affirmed.
Judgment affirmed.
Eliza A. Sheets et al.
V.
Granville L. Wetsel, Executor et al.
WMIb — Construction of*
1. The intention of a testator, if not inconpistent with the rules of law,
must govern in the conBtruction of a ^iven will.
2. It is the general rule that when the use of mone3' is ffiven to one for
Jife, with remainder over to another, the former has no ripht to the posses-
sion of the money so bequeathed, but it should be put at interest the inter-
est paid to the tenant for life, and the principal retained for the reniaicder-
man.
3. In the case presented, this court construes several clauses of the will
involved, affirmina: in part and reversinff in part the decree of the trial
court therein, with directions to amend' the same.
[Ophiion filed June 12, 1891.]
Third District — November Term, 1890. 601
Sheets V. WeUeL
Appkal from the Circuit Court of McDonough County;
the Hon. C. J. Scofield, Judge, presiding.
Me86i*8. Nebce & Son, for appellants.
Messrs. D. G. Tunnicliff, for appellees.
CoNOEK, P. J. .This is an ex parte proceeding in chancery
to obtain a construction of certain clauses in the last will and
testament of George W. Slieets. deceased. Eliza A. Sheets,
widow of the said George W. Sheets, Granville L. Wetsel,
executor of the will, and Ira Sheets, son of the testator and a
legatee under the will by his guardian, Eliza A. Sheets, are
parties.
The clauses in the will under which the controversy arises,
are the third, iifth and eighth; the executor claiming that
the money bequeathed to Ira Sheets by the third clause
should not be paid to his guardian, but held by the executor
or paid to a trustee and the income paid to the guardian, and
Eliza A. Sheets claiming that it should be paid to her as
guardian; the executor claiming that the money bequeathed
to said Eliza A. Sheets by the hfth clause should be paid to
her on her giving bond not to expend the priucij^al, other-
wise to be paid to a trustee and the income paid to her, and
the said Eliza A. Sheets claiming that the same be paid to
her to use and expend as she sees tit; what is left at her mar-
riage or death to go to said Ira Sheets; and the executor
claiming that Eliza Sheets is not entitled to the possession
and control of the money bequeathed to her by the eighth
clause of said will, but that the same should be paid to a
trustee, and the income only paid to her; and the said Eliza
Sheets claiming that she is entitled to the possession, use
and control thereof until her marriage or death.
The third, fifth and eighth clauses are as follows :
" 3. Subject to the above provision for my said wife, Eliza,
I give and devise unto my said son, Ira Sheets, the said above
described two tracts of land for the sole use of himself, his
heirs and assigns, forever, and in addition thereto I give and
602 Appellate Courts of Illinois.
Vol. 89.] Sheets v. Wetsel.
bequeath to him the 8um of $1,000, to be paid to him out of
mj^ estate on his arrival at twenty-one years of age.
" 5. I give and devise to my beloved wife, Eliza, the sum
of $1,000, to be paid to her out of my estate as soon as prac-
ticable after my death, and which she is authorized to use in
such way as she may see proper during her life, or so long as
she may remain my widow. But upon her death or marriage,
that part thereof which she may not have expended I give
and bequeath to my son, Ira Sheets, for his sole use forever.
"8. And other personal property that may be over at my
death, after paying the legacies herein provided for, I give
and devise the use thereof to my beloved wife, Eliza, during
her life, if she so long remains my widow, and upon her
death or marriage, or should she renounce the will, I give
and bequeath the same to my beloved son, Ira Sheets, for his
sole use forever."
As to the third clause, the court below decreed that the
$1,000 to be paid to Ira Sheets on his arrival at twenty-one
years of age, should be paid to certain trustees appointed by
the court, who should hold the same, and pay the interest to
be received upon it when loaned, to tlie guardian of said Ira
Sheets until his majority, when the principal should be paid
to him.
JNo complaint is made of this decree except that the money
should at once be paid to the guardian of Ira Sheets, The
real diflSculty it seems to us is in determining who is entitled
to receive the interest on this $1,000 during the minority
of Ira Sheets. Taking the literal language of the third
clause, it would seem that the money must be lield by the
estate and is not due, either principal or interest, to li'a^
until his majority. Taking the whole will into consideration
however, it is quite reasonable to suppose that the intention
of the testator was to give to his sou, Ira, tlie use and benefit
of the $1,000 immediately, but to postpone the payment to
him of the principal until his majority; we are inclined to
think this is the correct view, and if it is, there is no error
in the decree of the court in reference to the third clause.
In construing the fifth clause, the court held that Eliza A.
Third District — November Term, 1890. 603
Sheets v. Wetsel.
Sheets, the widow, was only entitled to a life estate in the
$1,000 mentioned therein, and ordered that it might be paid
to her, provided she gave bond conditioned that if she ehoald
again marry, or if she should not £narry again, then that her
legal representatives should upon her death pay to Ira Sheets
the principal sum. The decree further provided that in
default of giving such bond, the money should be paid to
trustees, and the interest only paid to her.
We think this was not the proper construction to be given
to this clause. It is well settled that the intention of the
testator, if not inconsistent with the rules of law, must govern
in the construction of a will. Hamlin v. U. S. Ex. Co., 107
111. 443; Henderson v. Blackburn, 104 III. 227.
Tlie language of the fifth clause, in our opinion, can admit
of but one construction, t. e., that the widow was to be paid
the $1,000, and she was to use the same in such way as she
might see proper during her life, or while she remained the
widow of the testator. She might entirely consume it or any
part of it, if, in her judgment, her necessity required it. Only
such portion, if any, which remained unexpended at her death
or re-marriage would pass to and vest in Ira Sheets.
It is true the general rule is, that when the use of money
is given to one for life, with remainder over to another, the
former has no right to the possession of the money so
bequeathed, but it should be put at interest, the interest paid
to the tenant for life, and the principal retained for the
remainder-man. Welsch v. Belleville Savings Bank, 94 III.
206. But the language of the fifth clause will not admit of
such a construction.
Had the widow been given the use of $1,000 and at her
death or re-marriage the same to pass to Ira Sheets, the
above rule would have prevailed. But the money is to be
])aid to her. She is then authorized to use it in such way
as she may see proper; and to make his intention clear, the
testator expressly limits the remainder over to Ira Sheets to
" that part thereof which she may not have expended."
No language could make his intention clearer; hence we
think the decree of the court as to the fifth clause of the will
604 Appellate Courts of Illinois.
Vol. 89.] Campbell v. Magruder.
was erroneous; and as to this $1,000 the court should have
directed it to be paid to the widow absolutely and without
conditions. If she consumes it all so that there is nothing
left for Ira Sheets, it is a contingency which the testator
seems to have fully realized and provided for.
By the eighth clause, the property, of which the use is
given to the widow, with remainder to Ira Sheets, clearly
comes within the doctrine in the Welsch case, supra, and the
decree provides for its disposition in accordance therewith.
The decree of the Circuit Court will be aflSrmed as to the
third and eighth clauses of the will and reversed as to the
fifth-
The cause will be remanded with directions to the Circuit
Court to amend its decree in accordance with the views
herein expressed. The executors to pay the costs made in
this court.
Affirmed in jpart and reversed in part with directiona.
J. S. Campbell et al.
V.
Kate Magrudee.
Dram Shops — Action hy Wife — Injury to Means of Support'—FJeading
•^Evidence — Invtructions.
1. This court affirms, in view of the evidence, a judement fpr the plaint-
iff, in an action brou(?ht by a widow under the Dram Shop Act, to recover
from saloon keepers for injury to her means of support by reason of the
death of ber Husband, the same oeiug alleged to have been caused by liquor
Bold or given by them to him.
2. An instruction in such case, purporting to state the right of recovery
in the words of the statute, should not omit the clause, *' by giving or sell-
ing (to him) intoxicating liquors."
3. In the case presented, this court holds as proper the allowance of
hypothetical questions on the basis ot the undertaker's statements as to the
contents of the dead man's stomach. It was for the jury to determine its
weight*
[Opinion filed June 12, 1891.]
Third District — November Term, 1890. 605
Campbell v. Maprruder.
Appeal from the Circuit Court of Coles County; the Hon.
E. P. Vail, Judge, presiding.
Messrs. Joe H. Winkler, David Hutchinson and James J.
Finn, for appellants.
Messrs. Clark & Clark, for appellee.
Pleasants, J. Appellee brought this suit under the Dram
Shop Act against appellants, saloon keepers, for injury to her
means of support by the death of her husband through intox-
ication caused by liquors sold or given by them to him. We
presume the plea was not guilty, though the abstract is silent
on that point. Plaintiff recovered judgment on a verdict for
§1,000.
There was evidence both positive and circumstantial, to
support the finding upon all tlie material allegations, and also
to the contrary. It is unnecessary to discuss it or to say on
which side, in our opinion, was the preponderance.
Appellants assign for error, that the declaration states no
time or place when or where the alleged wrongful acts of the
defendants were committed; that the record does not show
that any replication was filed, and that there was no issue
joined.
From the abstract it appears that the first count alleged
that plaintiff was the wife of Thomas Magruder up to the
time of his death, which occurred on the 10th of October,
1SS9, at Coles County, Illinois; that the defendants " on, etc.,
and divers other days," sold and gave him intoxicating liquors,
etc.; that the second count, after giving the place and date of
his death, proceeds to charge that, on the day aforesa^/i the
defendants there sold and gave, etc., and that the third and
fourth set forth substantially the same facts as in the second.
Thus in three of the four counts the time and place were
averred. It may be presumed that the foundation for the
statements that no replication was filed or issue joined, is the
fact that the mniliter was not added to the plea. The defects
thus lately complained of are not so serious that the plea,
606 Appellate Courts of Illinois.
Vol. 39.] Campbell v. Magruder.
trial, verdict, judgment and statute of amendments and jeo-
fails would not cure them.
No error in admitting or rejecting evidence is suggested in
the argument, unless it be the allowance of hypothetical ques-
tions on the basis of the undertaker's statement as to the con-
ten ts of the dead man's stomach; to which we see no objection,
and none is particularly made. The witness did not pretend to
know tlie contents, but he certainly had some means of forming
an opinion, judgment and belief, and he stated it only as such.
It wa& for the jury to determine its weight, and entirely proper
to base the questions to the experts upon the hypothesis of its
truth.
The first, second and fourth instmctions given for the
plaintiff, considered separately, are defective. Each of them
states tliat plaintiff has a right to recover for the injury here
complained of, if it was the direct result of her husband's
intoxication, against any and all who caused his intoxication,
in whole or in part — in the language of the statute, substan-
tially, as far as it goes, but omitting the clause " by giving or
selling (to him) intoxicating liquors." This is an essential
element of the wrong. The statement in the declaration con-
tains it, and the instructions also should have included it
Yet we can not reasonably suppose that the jury were misled
by its omission in these, since it appears in those numbered six
and seven, and is very clearly so declared in those given for
the defendants and numbered two and three. Such also, would
be the general understanding from the terms here used.
Plaintiff's third was somewhat loose, but the subject was so
treated in defendant's second as to prevent the possibility of
a mistake about it, if instructions could prevent it. The
amount found is proof enough that there was none in fact.
Seeing no sufficient reason for a reversal, the judgment
will be affirmed.
Judgment affirmed.
Third District — November Term, 1 890. 607
C, P. & St. L. Ry. Co. V. Ay era.
The Chicago, Peoria & St. Louis Railway Com-
pany ET AL., Impleaded, etc.,
V.
Marshall P. Ayers et al.
Banks— Account of Several Corporations withy under One Name — Inter'
est on Advances and Overdrafts — Recovery of,
1. Under an agreement between the president of several railroad com-
panies and a bank, an account having been opened therewith by him in
their behalf under a certain name, that said bank should be paid interest
on advances and overdrafts, an action may be broughtagainst all the com-
panies to recover such interest,
2. The fact that one of such roads was being built and not in operation
could not affect such right nor could the fact that as between thenisetves
such companies'kept separate accounts and had a system by which balances
were struck.
[Opinion filed June 12, 1891.]
Appeal from the Circuit Court of Morgan County; tlie
Hon. Cyrus Eplek, Judge, presiding.
Messrs. Morrison & Whitlock, for appellants.
Messrs. Brown & Kirby and Edward L. McDonald, for
appellees.
Conger, P. J. On the 6th of March, 1887, Mr. W. S.
Hook was the president of the following four railroad com-
panies, to wit : The Jacksonville Southeastern Railway Co.,
The Chicago, Peoria & St. Louis Ry. Co., The Litchfield
Carrollton & Western R. R. Co., and the Louisville & St.
Louis Railway Co.
Mr. Hook as president of, and representing all of said com-
panies, opened an account with appellees at their bank, under
the name of the Jacksonville Southeastern Line.
80 607
140« 044
608 Appellate Courts of Illinois.
Vol. 39.] C. P. & St. L. Ry. Co. v. Ay era.
In this account the earnings of, and payments for the four
companies were all put together, and so far as the bank j^-as
concerned there was nothing in the manner of keeping the
accounts or transacting the business, to show what proj)ortion
of the moneys were used for or belonged to the respective
companies. Between March 6, 1SS6, and October of that
year, Hook agreed with A. E. Ayers, one of the firm of M.
P. Ayers & Co., the appellees, that the bank should be paid
interest on all advances or overdrafts made on this account,
and this action was brought against the four companies for
this interest.
The Jacksonville Southeastern Ry. Co. and the Louisville
& St. Louis Ry. Co. were defaulted, and the C, P. & St. L. Ry-
Co. and the L., C. & W. R R. Co. defended on the ground
that they were not jointly liable. Appellees recovered a ver-
dict and judgment for $2,191.91.
The Louisville & St. Louis Railway Company was organ-
ized in September, 1886, and the road was built in the
summer and fall of 1887, while it does not appear to have been
fully completed and in operation until about January, 1888,
from which fact, it is urged by appellants, this company
could not have been a party to the arrangement by which the
" line " was created ; we see no force in this objection ;
whether the road was being built, or was actually completed,
would make no diflFerence. It existed as a corj)oration and
luid as much right to enter into the arrangement as either of
the other companies, and in fact did so, although during the
summer and fall of 1887, it was receiving from the general
fund of the "Zm^" for the expenses of its construction, and
paying nothing in.
A great deal of testimony went before the jury to show
that these corporations, among and between themselves, kept
scjiarate accounts and had a system by which balances were
struck. While we have read this evidence with care, we fail
to see how it can affect appellees. It was not the business of
the owner of the bank to know what corporations composed
the " line,^^ or how the accounts stood as between them.
They had a right to adjust their account with the " Zin^,"
Third District — November Term, 1890. 609
Johns V. McQaijfg.
and wlien it was found to be owing them a balance, to hold
as responsible therefor all the corporations of ^which it was
composed.
The instructions complained of are substantially correct,
and we think that the judgment is just and supported by tlie
evidence, and hence will be affirmed.
Judgment affirmed.
Robert Johns et al., for use, etc.,
V.
J. C. McQuiGG.
Sales.
In an action brongbt to recover for lumber sold and dHivered, the con-
tention being as to whether the defendant or a building contractor was
liable therefor, this court declines, in view of the evidence, to interfere
with the judgment for the defendant.
[Opinion filed June 12, 1891.]
L\ppEAL from the Circuit Court of Christian County; the
Hon. Jacob Fouke, Judge, presiding.
Messrs. E. &., Hcmphreys, J. G. Dkennan and F. P.
DiiENNAN, for appellants.
Messrs. Gkoss & Broadwell and J. C IIicks, for appellee.
Wall, J, This suit originated bef r»re a justice of the peace
and was removed by appeal to the Circuit Court where, by
agreement, the parties waived' a jury and submitted the issues
to the court. The finding and judgment were for the defend-
ant and the plaintiffs bring the record here by appeal and
assign error upon the action of the court in refusing certain
propositions of law and in finding for defendant upon the
questions of fact
Vol. XXXJX 39
610 Appellate Courts of Illinois.
Vol. 89.] Davis v. Nichols.
The plantiffs' claim was for lumber furnished one Hart-
sock, who had a contract to build a house for defendant, and
the only issue of fact was whether the hmiber was sold to Hart-
sock or to defendant, or whether defendant bound himself
to pay for it. On this point the e,vidence was in conflict and
we can not say the conclusion of the court in respect thereto
was incorrect.
There was certainly enough evidence to support the finding.
The so-called propositions of law were merely propositions of
fact, to the eflfect that upon the evidence the plaintiffs were
entitled to recover.
We find no error and the judgment must be affirmed.
Judgment affirmed.
Aquilla J. Davis et al,
V.
N. G. Nichols et al., School Directors.
Eminent Domain — Site for School House — Mandamus to Compel Cvn^
dem nation of.
1. Land beld for a public use can be condemned for anotber pablic use
wben tbe latter is different from the former, and not inconsistent with, or
destructive of, the rights of the public under the first.
2. The public square of a village can not be appropriated ae tbe site for
a school house.
[Opinion filed June 12, 1891.]
Appeal from the Circuit Court of Tazewell County; the
Hon. N. W. Gkeen, Judge, presiding.
Mr. B. S. Pketttman, for appellants.
Messrs. "William Don Maus, W. E. Curean and T. N.
Gkeen, for appellees.
Conger, P. J. Appellants filed a petition, alleging tliat
they were citizens and taxpayers of school disti'ict No. 1, etc.;
Third District — November Term, 1890. Gl 1
Davis V. Nichols.
that the school house in such district was inadequate; that
there had been a le^al election by the voters of the school
district to locate a site for a new school house; that at such
election the northwest quarter of the public square of the
village of Tremont was chosen as the site for a new school
house; that the directors had applied to the president and
trustees of said village to agree to a compensation for such
ground; that the title to the square was in said president and
trustees for said village; that they refused to agree to
anything in relation thereto; that the school directors re-
fused to take measures to condemn said ground for a
school house site; and prayed that a writ of mandamus issue
requiring said school directors to immediately proceed as
required by law to have condemned, and have compensa-
tion for such school house site determined as required by the
law of eminent domain, etc.
A demurrer was filed to the petition, which was sustained
and the petition dismissed.
Several questions are raised by the demurrer and the argu-
ments of counsel, but we do not deem it necessary to notice
but one of them, i. e,j " that the site alleged to have been
selected for a school house is already used and held and occu-
pied for a public use and purpose, and it would be unlawful
to use it for a school house." Upon this point appellant's
counsel in his brief says:
"And the fee in land, held or taken for one pnblic nse may
be condemned to another public use if that other is a differ-
ent use. If the new use is for the benefit of the public,
whether the change will be for the benefit of the public is
a political question to be determined by the law-making
power, and the authorized submission of the selection of a
school house site to a popular vote is a determination by the
people that it is for the public benefit; and that it is a new
nse can not be questioned; and the law requiring the directors
to proceed and condemn it under the eminent domain law for
that new use is a clear determination of it."
He cites the following cases as the authority for his posi-
tion. M. C. Ky. Co. V. 0. W. D. Ky. Co., 87 111. 317; Lake
6115 Appellate Courts of Illinois.
Vol. 39.] Davis v. Nichols.
Shore & M. S. By. Co. v. C. W. I. R R, 97 111. 506; C. <fe M.
W. Ey. Co. V. C. & E. R R Co., 112 111. 589; People ex rel.
V. Walsh, 96 111. 232. Tlie first tiiree of these eases liold that
property appropriated by one railroad company does not pre-
vent another company from condemning portions of the same
for a new and different public use.
This doctrine is well established in this State; otherwise, as
the court say in one of tlieir opinions, one railroad could
never cross another without consent.
In the Walsh case, supra^ it is held that the Legislature
may transfer the control of streets of a city or village to park
commissioners to be by them improved and controlled for
boulevard and park purposes, where such purposes are not
inconsistent with their use for ordinary travel.
The general rule, we apprehend, is, that land held for a
public use, can be condemned for another public use when the
latter is different from the former and not inconsistent with
or destructive of the rights of the public under the first;
that portions of the land of one railroad, under certain cir-
cumstances, should be used for another public use, such as a
railroad or public street crossing, is not inconsistent with or
destructive of the first use, or of the rights of the public.
In the case at bar, however, the public square of the village
of Tremont is held in trust for the public use, and it can not
be appropriated to any other use inconsistent with or destruc-
tive of the first; that the building of a school house upon the
public square of a village, whether such square be left open
for public travel across it, or inclosed and used as a park,
would be inconsistent with the original use, can not be doubted.
Suppose the voters of a school district were to select as a
site for a new school house, the middle of a public street or
the court house of the county; would it seriously be con-
tended that such site could be enforced ? Princeville v.
Auten, 77 111. 326; Jacksonville v. J. R W. Co., 67 111. 541.
We are of opinion the demurrer to the petition was prop-
erly sustained.
Judgment affirmed.
Third District — November Term, 1890. 613
Caldwell v. Evans.
Alvin Caldwell
V.
Henry C. Evans.
Stt'Off—See. 49, Chap, 79, R, S.
The claim of a plaintiff in a given case for unliquidated damaffes arisinar
out of a tort^ totally disconnected from the defendant's claim against the
plaintiff, upon a note on which suit had been previou&ly brought, is not
such a claim or demand as should have been brought forward and adjusted
in the suit upon suid note.
[Opinion tiled June 12, 1891.]
Appeal from tlie Circuit Court of Piatt County; the Hon.
J. F» Hughes, Judge, presiding.
Messrs. Lodge & Hicks, for appellant.
The case of Robison v. Hibbs, 48 111. 408, holds that
unliquidated damages can not be set oS in action on an
account; but no construction of this statute is given. Such is
the rule, no doubt, in the absence of this statute, but the very
object of this statute is to save the expense which the appli-
cation of that rule before justices would compel litigants of
small claims to incur. In the later case of Lathrop v. Hayes,
57 111. 279, the Supreme Court fully discusses the statute and
the object of its enactment, in the light of our own decisions
and those of New York construing a similar statute, and
arrives at the conclusion ''that where one party commences
his action before a justice of the peace, the adverse party, if
he have a/ny demands existing, must bring them forward, if
capable of being consolidated into one defense," and the court
says : "Indeed we do not see how it will bear any other con-
struction without utterly disregarding the plain meaning of
the words used; doubtless it was the intention of the Legisla-
ture to prevent the multiplicity of unimportant law suits in
which small sums of money would be involved." The only
exception made by the court from any demand is attachment
1
614 Appellate Courts of Illinois.
Vol. 89.] Caldwell v. Evans.
with constructive service. Of course, the demand must be
one the justice has jurisdiction to hear; but to apply the same
rules to such actions as are apph'ed in courts of record on the
subject of unliquidated damages, set-off, etc., defeats the very
object of the statute. We submit the construction given in
57 111. is the reasonable and proper one to be given the stat-
ute, and under that rule this claim is barred. Lathrop v.
Hayes, 57 111. 279.
Mr. M. R. Davidson, for appellee.
Our proposition is, that Sec. 49, Chap. 39, R. S., does not
modify the common law doctrine of set-off; that the rules of
the common law ai-e applicable in actions before a justice of
the ]3eace.
We find in examining the section in question, that it is the
statute of 1845, re-written and changed as to the pecuijiary
limit of jurisdiction. In 1846 this statute received its first
construction by our Supreme Court. We invite your atten-
tion to the case of Hawks v. Lands, 3 Gilm. 232, where
the court in commenting upon this section says: ''Unliqui-
dated damages arising out of covenants, contracts, or torts
totally disconnected with the subject-matter of the plaintiff's
claim, are not such 'claims or denjands' as constitute the sub-
ject-matter of set-off under our act of assembly. To give
this construction to the statute would invent justices of the
peace with full jurisdiction over questions involving the title
to, and covenants concerning, real estate, compel parties to
litigate all their rights of whatever nature or kind in one
action and result in irremediable injustice and endless confu-
sion." See Bush v. Kindred, 20 III. 94; De Forest v. Oder, 42
111. 502; Robison v. Hibbs, 48 111. 409. We confess we are
too obtuse to discover wherein the case of Lathrop v. Hayes,
cited by appellant, revokes or even modifies these decisions.
We invite the court's attention to what the courts have
said later on. See East v. Crow, 70 111. 93; Clause v. Bullock
Press Co., 118 111. 617; Hartshorn v. Kinsman, 16 111. App. 557.
CoNGBR, P. J. This was an action originally commenced
before a justice of the peace by appellee against appellant,
Third District — Novej^ jer Term, 1890. 615
Caldwell v. Evans.
and upon appeal to the Circuit Court a verdict and judgment
was rendered against appellant for $95.
The claim of appellee was that appellant, in company with
his two daughters, was driving some of his own colts along
the road, when they jumped over into appellee's field, and got
with appellee's colt, which had but recently been castrated.
That appellant in trying to get his colts out of the field, so
negligently and carelessly ran the colt of appellee about the
field as to cause its death.
Appellant contended that due care was used that the colt
was not injured by the running, but its death was caused by
improper treatment when it was castrated.
We have carefully examined the evidence upon this ques-
tion, and can not say that the jury were not warranted in
reaching the conclusion they did. The evidence was contra-
dictory, and in such case the jury having the witnesses before
them had much greater opportunities of weighing the evi-
dence than we have.
Appellant also insists that this claim for damages was barred
because, after the death of the colt and prior to the present
suit he had sued appellee before a justice of the peace upon
a note which appellee owed him, and appellee should have
brought forward this claim for damages and had the same
adjusted in such suit, in accordance with the provisions of
Sec. 49, Chap. 79, R. S., which provides that, "Ea«h party
shall bring forward all his demands against the other, existing
at the time of the commencement of the suit, which are of
such a nature as to be consolidated, * * * and on refusing
or neglecting to do so, shall forever be debarred from suing
therefor."
Appellee's claim is for unliquidated damages arising out of
a tort, totally disconnected from appellant's claim upon the
note upon which he brought suit, and hence was not such a
claim or demand as would constitute the subject-matter of a
set-off in that suit. Hawks v. Lands, 3 Gilm. 227; Bush v.
Kindred, 20 111. 9L
Appellant refers us to Lathrop v. Hayes, 57 111. 279, as hold-
ing a contrary doctrine, but we do not view it in that light. In
616 Appellate Couets of Illinois.
Vol. 39.] Town of Bloomington v. Lillard.
that case the question was, where one is sued before a justice
of the peace, and has a claim against his adversary within the
jurisdiction of a justice of the peace, and a proper subject of
set-off, must he bring it in as a set-off against his adversary's
claim or coinnience a new suit. There is nothing in this case
at all modifying or changing the holding in the Hawks case,
supra.
It is said the instruction given to the jury for appellee is
misleading in that it does not limit the kind of negligence
which would render appellant liable. We do not think the
instruction properly subject to this criticism, but if there were
any doubt about it, the instructions given upon the part of
appellant clearly and favorably lay down the law upon this
question.
The judgment of the Circuit Court will be affirmed.
Judgment affirmed.
The Town of Bloomington
V.
John T. Lillard.
Municipal Corporations — lAahilityfor Attorney's Services,
A town is so far interested in a controversy involving the cancellation of
sparious orders outstanding against it, as to justify the raising of money
and incurring of liability in regard thereto. fQr the payment of professional
services rendered therein.
[Opinion filed June 12, 1891.]
Appeal from the Circuit Court of McLean County; the
Hon. A. Sample, Judge, presiding.
Messrs. Kerrtck, Lucas & Spencer, for appellant.
«
Messrs. Joetn E. Pollock, for appellee, and John T. Lil-
lard, of counsel, pro se.
Third District — November Term, 1 890. 617
City of JackRonville V. Cherry.
™^ — ' — -I -- I I I I I ■! -
Wall, J. This was a suit to recover $100 for professional
services rendered by the plaintiflE in a snit in chancery to
cancel certain spurious orders outstanding against the town.
There is no question that the services were rendered and that
they were worth the sum charged. The bill was approved
and ordered paid at the regular town meeting, in April, 1890,
by unanimous vote of the electors. The litigation was then
pending. The only question is whether the town was
interested in the controversy so that it might raise money and
incur liability in regard thereto. We think it was. The
validity of the orders in dispute aflEected the town finances and
the town had a direct pecuniary interest in the premises.
The power of the town is not limited to suits in which the
town iQ a party but embraces those in which it is interested.
The statute is broad enough in letter and in spirit to support
the town's action in assuming to pay the bill, and that action
was taken at the first opportunity after the suit was com-
menced.
The judgment will be affirmed.
Judgment affirmed.
The City of Jacksonville
V.
John Cherry, Jb.
Practice — Exceptions — Preservation of.
1. Unless an exception is preserved by embodying it in a bill of excep-
tions, no ruiingr* however improper, that does not relate to (he pleadings, or
appear on the face of the judgment, can be reviewed in an Appellate
Court.
2. A recital inserted by the clerk in the record immediately following
the judgment, to the effect that an exception was taken thereto, can not be
regarded as a part of the record.
[Opinion filed June 12, 1891.]
Appeal from the County Court of Morgan County; tlio
Hon. O. P. Thompson, Judge, presiding.
I 89 tflt<
68 600
618 Appellate Courts of Illinois.
Vol. ti9.] Magers v. Dun lap.
Mr. EiCHARD YatbSj for appellant.
Messrs. George W. Smith and Oscab A. DeLexjw, for
appellee.
Per Curiam,, This was an action of assumpsit for money
had and received, which was tried by the court without a
jury and resulted in a finding and judgment for plaintiff for
$574.15, to which, so far as the record shows, no exception
was taken. It is true, as in Martin v. Foulke, 114111. 206,
and so many other reported cases, there is a recital inserted
by the clerk in the record, immediately following the judg-
ment, to the effect that such an exception was taken, but we
can not regard that statement as a part of the record. If such
an exception was taken, it could only have been made a part
of the record by embodying it in the bill of exceptions, and
we fail to find it there. The rule is inflexible, that without
an exception so preserved, no ruling, however improper, that
does not relate to the pleadings or appear on the face of the
judgment, can be reviewed in an Appellate Court. Here the
pleadings consisted of the common counts consolidated and
the plea of non-assumpsit. It is not claimed that the judg-
ment is erroneous on its face. We therefore can not consider
the errors assigned, and the judgment must be aflirmed.
Judgmefiit affirmed.
Barbara Magers
V.
J. A. DUNLAP.
NegotiahJe Insiruments — Note —Alteration— Exemptions — Evidence —
Consideration-
1. The alteration of a promissory note after delivery which in no man-
ner changes the rights or interests, duties or obligations of the partieit
thereto, has no effect.
2. The words, ** for labor" in the note in suit, do not import that the
consideration was ** wages ** due the payee ** as laborer or servant/' within
Thikd District — November Term, 1890. 619
Mapferfl v. Dunlap.
the meaningf of the exemption act. **Liborer," or **8ervant," as used in
the statute, is a designation of a class of persons.
3. In an action brought upon a note given in payment for the profes-
sional visits of a physician, the defendant should not be allowed to state
the number of visits made, in order to show a partial failure of considera-
tion, she Living received ail that was promised for the note or gave it for
what she received.
[Opinion filed June 12, 1891.]
Appeal from the County Court of Moultrie County; the
Hon. C. N. TwADELL, Judge, presiding.
Mr. E. M. Peadro, for appellant.
Mr. John R. Eden, for appellee.
Pleasants, J. This was on a suit on a promissory note
made by appellant to appellee, commenced before a justice of
the peace and appealed to the County Court, where a verdic-
was returned and judgment thereon rendered for plaintiff.
The note offered in evidence purported to be " for labor."
Defendant claimed that these words were added to it after
delivery, without her consent, and therefore on oath denied
its execution. It appeared that plaintiff was a physician and
the note ^iven for professional services. He testified tliat
there had been no alteration and was corroborated. She con-
ti'adicted, and was also corroborated. It was for the jury to
find' the fact. The court refused the instructions asked by
defendant relating to the effect of the alteration alleged.
Assuming it was made as she stated, yet if it in no manner
changed the rights or interests, duties or obligations of either
of the parties, it had no effect. Y ogel v. Eipper, 34 LI. 106.
It is said the object of it was to deprive this widow of the
benefit of the fourth section of the exemption act. We think
the words "for labor," do not import that the considera-
tion was '' wages " due the payee " as laborer or servant."
•* Laborer " or " servant," as used in the statute, is a designa-
tion of a class of persons. Epps v. Epps, 17 111. App. 196.
The term "labor " furnishes no such indication. Labor mavbe
as well performed without " wages " as for them, and by one
620 Appellate Coukts of Illinois.
Vol. 39.1 Sauerbier v. Union Central Life Ins. Co.
class as well as another. In this ease the evidence makes it
clear that the plaiutiflE was not a " laborer or servant" and the
note was not for " wages," in the statutory sense. Hence
there was no ground for the judgment of the justice, if it was
intended to obviate the effect of the exemption act. But his
judgment is not here under review. The trial on appeal was
de now and the judgment of the County Court was just what
it would or should have been if these words had not been in
the notes. No right of the defendant has been or can be
affected by them. Being thus immaterial, the motive or pur-
pose of plaintiff in adding them, if he did add them, could
not properly be inquired into, Vogel v. Hipper, supra, Moie
V. Herndon, 30 Miss. 110.
Appellant was asked by her counsel how many prof essional
visits she received from appellee, and others of the same
.character, which the court excluded. The object was to
prove a partial failure of consideration, but the proposed
evidence had no tendency to prove it. If she received all
she was promised for the note, or understandingly gave it for
what she did receive, then whether it was worth much or little
in the estimation of the jury — five dollars or seventy-five —
there was no failure of consideration. The rulings com-
plained of were right, and the judgment will be afiirmed.
Ju&jinent affirtned*
39 6S0
51 %
Emma Sauerbier et al.
V.
Union Central Life Insurance Compant.
lAfe Insurance — Policy — Reformation — Assignment qf—Eridenee,
1. As to ordinary policies of life insurance, the beneficiary has a vested
interest which is beyond the control of the party procurin^c the insurance.
2. An intended beneficiary need not be nnmed in order to invest him
with such interest, tmless required by the policy, and a father may thus
provide for his unborn child.
Third District — November Term, 1890. 621
Sauerbier v. [Jnion Central Life Ins. Co.
1 .
8. Where the description is uncertain in such case, parol or other extrin-
sic evidence is admiBsible to aid it.
4. The assurance by the agfent of an insurance company of the sufficiency
of the statement in, and signature to an application, to accomplish the pur-
pose of the applicant, will bind the company.
5. The acceptance of an application and the making of it a part of a
policy by an insurance company will estop it to deny the interest of chil-
dren mentioned together with a wife in the application, although the policy
mentions the wife as thf» sole beneficiary.
6. In the case presented, this court holds thnt the beneficial interest was
intended to be in the wife and children equally, per capita, and that the
policy should be construed in accordance with the intention of assured.
[Opinion filed June 12, 1891.]
Appeal from the Circuit Court of McDonoiigh County;
the Hon. C. J, Scofield, Judge, presiding.
Messrs. Agnew & Yose, for appellants.
Tlie application specially provides that the children shall
be beneficiaries. When the company accepted the applica-
tion, the minds of the parties met and the contract was com-
plete. It is not necessary that the policy should be issued
and delivered to the insured. Mactier v. Frith, 6 Wend. 119;
Taylor v. Merchants Fire Ins. Co., 9 How. 398.
The assured clearly expressed his intention in the applica-
tion that his children should share with his wife as benefi-
ciaries, and the company by express terms makes the applica-
tion a part of the policy.
The application may be a part of the contract when the
policy so provides. Bacon on Benefit Societies and Life
Insurance, Sec. 181.
The agent who solicited this insurance was the agent of the
company and not of the insured, and had the right to agree
with the insured as to the effect and meaning of the words
employed in answer to the questions in the application. Bacon
on Mutual Benefit Societies and Life Insurance, See. 153,
221; May on Insurance, Sec. 120; see Malleable Iron Works
V. Phcenix Ins. Co., 25 Ct 465.
The statement in the policy that the party soliciting the
insurance is the agent of the insured and not of the company,
622 Appellate Courts of Illinois.
— - ar . .
Vol. 89.] Sauerbier v. Union Central Life Ins. Co.
does not establish such fact. Kansal v. Minnesota, etc., Ing.
Co., 31 Minn. 17; Commercial Ins. Co. v. Ives, 66 III. 402.
A court of equity has power to reform a policy so as to
make it conform to the intention of the parties.
It is hardly necessary to cite authority on this proposition.
We refer to Gillespie v. Moon, 2 Johnson's Chancery
Report, 596, for a full discussion of the law and decisions
upon this subject. Also to Snell v. Insurance Co., 98 U. S.
85; Malleable Iron Works v. Phcenix Ins. Co., 25 Ct 465;
Williams v. North German Ins. Co., 24 Fed. Rep. 625; Keith
. V. Globeln8uranceCo.,52 111. 518; Westetal. v. Menard Co.,
82 111. 205.
The application almost wholly controls in determining the
intention of the parties. Phoenix Fire Ins. Co. v. Guruee, I
Paige Ch. Rep. 278.
In Motteaftix v. London Ins. Co., 1 Atk. 547, Lord Ilard-
wicke held that a policy ouglit to be rectified agreeably to the
label, and that the label was the real contract between the
parties. See Franklin Fire Ins. Co. v. Hcwett, 3 B. Monroe-
It is not expected that a policy holder will read his policy.
Phoenix Fire Ins. Co. v. Gurnee, 1 Paige Ch.Rep. 278; Mortli
British & Mercantile Ins. Co. v. Steiger, 26 III. App. 228.
Have the beneficiaries a vested interest in the policy which
is beyond the control of the insured ?
There is a well defined distinction between a mutual benefit
society and what is ordinarily termed an old lino insurance
company. In the former the certificate of membershij) is the
property of the member and can be changed at his will. In
an ordinary life insurance company the policy is not the prop-
erty of the insured in any sense, but it is the property
of the beneficiary from tlie day of its issue, for from that
time he has the whole beneficial interest. Niblack on Mutual
Benefit Societies, Sec. 201; Phillips on Insurance, Sec. 2058-
60; Bliss on Life Insurance, Sec. 318, 517; Chapin v. Fellows,
36 Ct. 132; Stillwoll v. Mutual Life Ins. Co., 72 K T. 385;
Wilburn v. Wilburn, 83 Ind. 55; Washington Life v. Hancvj
10 Kan. 525; N. Am. Life Ins. v. Wilson, 111 Mass. 542. "
The principle asserted in the above cases is fully indorsed
in Glanz v. Gloeckler, 10 111 App. 484.
Third District — November Term, 1890. 623
Sauerbier v. Union Central Life Ins. Co.
As to the question, did Leonidas Lodge have authority to
purchase the policy, and if so wlmt interest did it acquire
therein, the doctrine that a corporation can perform only such
acts as are authorized by its charter, is applicable. In Fietsam
V. Hay et al., 122 111. 2V*4, Justice Mulkey says: " Now a fran-
chise is nothing more than the right or privilege of being a
corporation and doing such things, and such things only, as
are authorized by the corporation's charter."
Leonidas Lodge was incorporated '* for the practice of
friendship, charity and benevolence."
The lodge paid $268.81 for the policy. If this transaction
was an absolute sale of the policy, it was a wager contract and
void. If the payment of the $218 was a loan and the assign-
ment of the policy taken as security, then the lodge can only
recover the amount of the loan. Cammack v. Lewis, 15 Wal.
643; Ins. Co. v. Eobertshaw, 26 Pa. St. 189; Warnock v.
Davis et al., 4 Mors. Trans. 93, cited in 11 Fed. Rep. 527.
Messrs. Smith, MoElvain & Herbert, for Leonidas Lodge,
Knights of Pythias, No. 87.
There is no variance between the application and the policy.
The requirement in the application that then«me of the ben-
eficiary sliould' be stated therein in the proper blank, was
met by the insertion of the name " Emma Sauerbier," wife.
In order to constitute a person a beneficiary, the name should
appear in the policy as such; and the only purpose that could
be served by inserting such name in the application is to fur-
nish the insurer with such name so that it may be inserted in
the policy. The policy was written in accordance with the
conditions of the application, was forwarded to the company,
and the premium was paid. This constituted a completion of
the contract. May on Insurance, 2d Ed., Sec. 56.
The company had the right to require the name or names
of the persons for whom the insurance was sought to be
written in the application by the insured, as a precaution and
protection to itself. The mere statement, "my children,"
was not a compliance with that requirement of the applica-
tion, and hence was not considered by the company when it
624 Appellate Courts of Illinois.
Voii. 39.] Sauerbier v. Union Central Life Ins. Co.
wrote up the policy. "My children" is comprehensive and
at the same time indefinite. What children ? Tliose only by
Emma Sauerbier? Would it include illegitimate, as well as
legitimate? Beneficiary's name must appear in policy. May
on Insurance, 2d Ed., Sec. 113.
The issuance by the company and the acceptance by Sauer-
bier of the policy for the sole benefit of '' Emma Sauerbier,"
was a completion of the contract as set out in the application.
The contract of insurance is between the company and the
insured, and he may alter and change beneficiary with consent
ot company. Swift v. R. P. & F. C. Ben. Ass'n, 96 111. 312.
Even if Emma Sauerbier had a vested interest in the policy,
she could assign her interest therein. Norwood et al. v.
Guerdon, 60 111. 253; Ponieroy v. Manhattan Life Ins. Co.,
40 III. 398. But Enima Sauerbier had no vested interest in
the policy by virtue of her being made the beneficiary.
Swift V, k P. & F. C. Ben. Ass'n, 96 111. 314; Martin v.
Stubbins, 126 111. 387. The insured can control the policy.
Johnson et al. v. Van Epps, 110 111. 551; 96 111. 309, above
cited; Wheeler v. Mortland, 21 111. A pp. 177.
And the policy may be assigned to one not having an insur-
able interest, with consent of insured. Johnson v. Yan Epps,
110 111. 551; Martin v, Stubbins, 126 111. 387; May on Insur-
ance, 2d Ed., Sec. 110.
Attorneys for appellants can only recover by a reformation
of the application and policy by the substitution of the names
of the children as beneficiaries. Can this be done? Courts
of equity will not reform written contracts as to mistakes
therein, unless those mistakes were mutual, and are understood
alike by the parties to the contract. Sutlierland v. Suther-
land, 69 111. 481; Lanier v. Wyman, 5 Rob. (K T.) 147.
Both parties are presumed to have understood the legal effect
of their contract. Sutherland v. Sutherland, 69 111. 488.
Where a party seeks to rectify a written instrument on the
ground of mistake, the rule is, the evidence must be such as to
leave no fair and reasonable doubt that the instrument does not
embody the final intention of the parties. Kerr on Fraud
and Mistake, 421.
Third District — November Term, 1890. 625
Sauerbier v. Union Central Life Ins. Co.
A mistake on one side may be gronnd for rescinding, but
not for correcting and rectifying an agreement. 1 Story,
Equity Juris., Sec. 152; Kerr on Fraud and Mistake, 422;
Douglass V. Grant, 12 111. App. 273.
Equity will not correct or reform a contract where there is
a mistake of law as to the effect of the language used by the
parties, in the absence of fraud, and where there is no mixture
of oppressive abuse of confidence, or surprise in matters of fact.
Gordere v. Downing, 18 111. 492,
A mistake as to legal rights is not a ground for equitable
relief. Weed v. Weed, 94 K Y. 243.
A mistake in fact may be a ground for equitable jurisdic-
tion, if it is made to appear satisfactorily. But this does not
extend to mistakes in the law of the contract, or in the inten-
tion of one of the parties, or the mistakes of legal terms
agreed upon between the parties, witliout fraud. Euffner v.
McConnell, 17 111. 212.
A mere misunderstanding of the facts is not sufficient
ground for asking a reformation of a contract; fraud or mis-
take is indispensable. Storey v. Conger, 36 N.-Y. 673 (9 Tiff.).
The name of Emma Sauerbier alone appearing in the policy
as beneficiary, and she having assigned or released her interest,
Leonidas Lodge had no notice of other parties claiming to be
beneficiaries at the time of the assignment of said policy by
Sauerbier to it. The lodge was a bona fide punch avser or
assignee without notice, and hence the policy must stand as
written. Wait's Actions and Defenses, Vol. 6, 452; Kilpat-
rick V. Kilpatrick, 23 Miss. 124.
The va^lidity of a transfer of personal property to a corpo-
. ration cannot be successfully assailed on the sole ground that
the execution of the transfer, or its acceptance, involved an
unauthorized exercise of corporate power. Mora we tz on
Private Corporations, 2d Ed., Sec. 712.
Pleasants, J. The material facts in this case are agreed
on. On November 1, 18S2, appellee, an old line insurance
company of Cincinnati, Ohio, issued to John Sauerbier, the
husband of Emma Sauerbier, and father by her of the other
Vol. XXXIX 40
626 Appellate Courts of Illinois.
Vol. 39.] Sauerbier v. Union Central Life Ins. Co.
appellants, a policy upon his life for $1,000. To the agent
who solicited and took his application for it, he stated that
he wanted the insurance to be made in favor of his wife and
children, and so fixed that if any more should be born to him
they should share therein equally with those then living.
On its face, among other things, the following appears in print :
" 10. Kame of the party in whose favor the insurance is pro-
posed." and immediately following, written by the agent,
"Emma Sauerbier and my children." In print: "11. Rela-
tionship, if any, to the party whose life .is proposed to be
insured," and immediately following in the handwriting of
the agent, ^'wife and children." The signatures to it, which
are on the right of the page, as usual, are first, " Jno. Sauer-
bier," in his own hand, on a line just over a printed note
indicating it as the place for the signature of party insured,
and on a lino next under it "Emma Sauerbier and my chil-
dren, by John Sauerbier," in his handwriting, over a like
printed note indicating it as the place for the signature of the
" beneficiary."
On the left, opposite to them, appears the following: "Wit-
ness, M. C. Ciirr, M. D.," and under this, "approved by E. JL
Farnam, agent," notwithstanding the intervening space is
occupied by a finely printed note that — "In every case the
party whose life is to be insured must sign this application
and declaration for himself. He nmst also sign for the ben-
eficiaries (unless such beneficiaries sign for themselves) as fol-
lows: The husband may sign for his wife, and the father for
his children, and the debtor for the creditor. Example:
Children — 'Jane and Mary Smith, by John Smith.' "
Thus it appears that the applicant intended and expected
the policy to be made out for the benefit of his children as
well as of his wife, including those, if any, who should there-
after be born, and whom, for that reason, he could not then
name, and that Mr. Farnam, the agent of the company, fully
understood this intention, wrote the words that expressed it
in the application, approved the signature for the children as
made, assured the applicant that the expression thus used
would make tliem beneficiaries, and agieed with him that the
Third District — November Term, 1890. 627
Sauerbier v. Union Central Life Ins. Co.
policy should so provide. The policy expressly makes the
application part of it, but uames as beneficiary Emma Sauer-
bier only, and outside of the application makes no reference
to any other.
Some time after its issuance, mutual dissatisfaction arose
between the insured and his wife. A bill for divorce was filed
by her, and a cross-bill asking the same relief, by him. An
arrangement was made between them whereby he withdrew
his charge and claim and all opposition to hers, and she, in
consideration thereof, signed a statement that she had assigned
to him all her interest in the policy. After that he became a
member of Leonidas Lodge, Knights of Pythias, of Mur-
phrysboro, Ill.,and still later, afflicted with a lingering disease,
on account of which the lodge expended in caring for and
burying him, §268.81 more than he was entitled to under its
by-laws. In view of such expenditure he assigned to it the
policy in question and gave notice thereof to the company.
^ After his death the lodge made the necessary proofs and
claimed the insurance. His widow then brought suit for it.
The company filed its bill asking that these claimants be
required to interplead and offering to pay the money into court
Her attorneys then filed a petition of the children to be made
parties and allowed to interplead also, and on leave obtained,
filed a bill setting up their relation to the insured, his intention
with respect to the insurance, and the statements, acts and
agreements of the company's agent as above stated, and ask-
ing that the policy be reformed or construed to conform to
said agreement and make them beneficiaries.
The issues having been made up were tried by the court,
and a final decree was entered, dismissing the children's bill,
and in favor of the lodge for the full amount of the policy;
from which decree this appeal was taken.
The controversy here is between the children and the
lodge. It is contended, on behalf of the lodge, that the chil-
dren had no interest as beneficiaries, because they were not
named in the policy.
By agreement of the parties, the original policy, including
the application, was left with the clerk for our inspection.
628 Appellate Courts of Illinois.
Vol. 39.] Sauerbier v. Union Central Life Ins. Co,
We do not find in it any condition or provision making
it essential that the intended beneficiarv should be named in
order to invest him with the interest. All that a])pears
in relation to the name is in the note above quoted, which
seems to be only directory.
Of course, he should be identified, and the name is the
usual, and generally the best, means for the purpose. But,
clearly, it is not the only means, nor in all cases practicable,
as is shown in this. A'fatJier may make this provision for his
unborn child. The name, therefore, can not be essential,
unless made so by the contract : Clinton v. Hope Ins.
Co., 45 N. T. 460; Burrows v. Turner, 24 Wend. 275; and
where other description is uncertain, parol or other extrinsic
evidence is admissible to aid it. Ibid. And if in this case
the company could have had any special interest in the par-
ticular means of identification, or intended any more than that
the name should be given where it was practicable, we hold
it would be bound by the assurance of its agent to the ap])li-
cant of the sufficiency of the statement and signature here
used, to accomplish his purpose. Such assurance was within
the 8Cope of his power. Malleable Iron Works v. Phoenix
Ins. Co., 25 Conn. 465; Am. Cent. Ins. Co. v. McLanathan, 11
Kan. 533. There was no misrepresentation of fact, nor any
obscurity of meaning. The only defect alleged is in the mere
form of the statement and signature. The agent, doubtless,
believed it wass.ufficient and proper for the purpose intended,
and the applicant was justified in relying upon his judgment
in respect to it. The company was not thereby misled into
any ri^k it would not otherwise have taken. His intention
was plainly manifested bj^ the application, and it should have
issued a policy conforming to it, or given him the opportunity
to apply elsewhere. Having accepted the application and
made it a part of the policy, it should be estopped to deny
the interest of the children. May on Insurance, Sec. 120;
Bliss on Life Ins., Sec. 290, et seq,; Wood on Fire Ins., 2d
Ed., Vol. II, pp. 843-4, and notes.
The company is not here denying it; it is the lodge that
denies it It claims under the insured, their deceased father,
Third District — November Term, 1890. 629
Sauerbier v. Union (Antral Life Ins. Co.
and can have no better right than liis. If anjbody should be
estopped to deny that they were beneficiaries, certainly he
should.
But it is said that if they were, they had no vested interest,
and that he, as the insured and contracting party, could change
the beneficiary and control or assign the policy without con-
sent of the latter ; citing Swift v, R. P. & T. C. Ben. Ass'n,
96 III. 312, and other cases, in all of which the certificate of
membersliip is in mutual benefit societies organized under
statutes. These instrnracnts are in the nature of policies of
insurance, but are distinguished from them in some respects,
of which the particular case here in question seems to be one.
As to ordinary policies we apprehend the rule is that the
beneficiary has a vested interest which is beyond the control
of the party procuring the insurance.
The text writers concur on that point. Bliss, Sec. 318;
May, Sec. 390; Bacon, Sec. 304; Nib^ack, Sees. 171, 201. It
was recognized in Glanz v. Gloeckler, 10 111. App. 484; S. C,
104 111. 573; and was expressly held in Hubbard v. Stapp, 32
III. App. 641. See also the Central Bank of Washington City,
v. Hume, 128 U. S. 206, where the same rule is declared
and authorities are cited. Then if the children were benefi-
ciaries tlie assignment of the policy by the insured to the
lodge was ineffectual against them. The wife's interest went
to him under her release or assignment, and therefore passed
by his, to the lodge.
We hold that the beneficial interest in the insurance was
intended to be in the wife and children equally, j^er capita^
and the policy should be so construed. We do not deem it
necessary to consider the supposed diflSculties in the way to
a reformation of it. There is a growing inclination on the
part of the courts even at law, to accomplish the same pur-
pose by construction and the application of the doctrines
of estoppel and waiver, whenever the cases admit of it. May
on Ins., Sec. 566, and cases cited in the notes; also Am. Cent.
Ins. Co. V. McLanathan, aujpra; State Ins. Co. v. Shreck, 27
Neb. 527; German Ins. Co. v. Miller (opinion of this court at
this term). Here the contract refers to the beneficiary in
630 Appellate Courts of Illinois.
Vol. 39.] Grape Creek Coal Co. v. Spell man.
three places. In two of them the children are expressly
shown to be intended as such together with the wife. In one
they are omitted. They ought to have been included there
also, and the court will treat as done that which ought to have
been done.
For these reasons we think it was error to dismiss the chil-
dren's bill and award the whole amount of the insurance to
tlie lodge. The decree will, therefore, be reversed and the
cause remanded for further proceedings in conformity with
the views here expressed. The costs of this appeal are
adjudged against the lodge.
Reversed and remanded.
The Grape Creek Coal Company
39 6901
54 339| V.
Thomas L. Spellman et al.
Written Contract — Specific Performance — Bill to Enforce — Injunction.
Chancery will not entertain a bill to specifically enforce contracts relatingf
to personal property; nor contracts which by their terms call for a succem^ion
of acts whose performance can not be consummated by one transaction, and
which require protracted supervision and direction.
[Opinion filed June 12, 1891.]
Appeal from the Circuit Court of Vermillion County; the
Hon. J. F. Hughes, Judge, presiding.
Mr. J. B. Mann, for appellant.
Messrs. W. J. Calhoun and M. "W. Thompson, for appellees.
Wall, J. The appellant filed a bill in chancery against the
appellees to enforce specific performance of a certain written
contract executed by the parties, providing as follows:
" Fi7'8t. The said Spellman (one of the appellees) to sell
Third District — November Term, 18U0. 631
Grape Creek Coal Co. v. Spell man.
and the said coal company (appellant) to buy the out-put of
his mine, the minimum amount being not less than 2,000 tons
of lump coal per month, the price for which should be $1.12^
based on a mining rate of sixty-live cents, and the mixed coal
at $3 per car, large or small.
^^ Second, The said Spellman to give his services, turning
over his trade to said coal company for the sum of $100 per
month and expenses. The said arrangement to terminate
April 1, 1891."
The bill averred that the coal in question was of superior
quality, having an established reputation, and that complain-
ant had built up a large trade in disposing of coal of the same
grade; that Spellman entered upon the performance of the
contract and continued therein for a time, jbnt that afterward
and without any reasonable cause, refused to deliver coal
under the contract, whereby and because of the alleged insolv-
ency of Spellman the complainant had no adequate remedy
at law. Prayer for specific ])erformance, by means of an
injunction restraining the defendant from selling his out-put
to any one except the complainant and for an account to be
taken of the damages sustained.
The answer denied that there was a special or peculiar
quality in the coal, as alleged, or that the product of such coal
was limited; denied that the complainant had built up a large
trade dependent upon this coal; admitted refusing to furnish
coal under the contract, but set up as an excuse that com-
plainant had for a considerable time failed to make payments
under the terms of the contract, thereby causing the defend-
ant great embarrassment financially, and averred that he was
always ready and willing to carry out the contract on his part
and would have done so if complainant had paid for the coal
delivered when payment was due.
The cause was beard and a decree was entered dismissing
the bill.
There was some conflict upon the questions of fact raised
by the answer; but we think it very clear that no case appears
for the relief asked by the bill and peculiarly to be afforded
by a court of chancery. Indeed, upon the face of the bill and
632 Appellate Courts of Illinois.
Vol. 39. 1 Grape Cree^ Coal Co. v. Spell man.
the contract as therein set out, it is difficult to see what there
is to give jurisdiction.
It is apparent that the damages alleged can be ascertained
at law, and we see nothing to prevent the application of the
general rule, that chancery will not entertain a bill to specif-
ically enforce contracts relating to personal property; nor con-
tracts which by their terms call for a succession of acts whoso
performance can not be consummated by one transaction, and
which require protracted supervision and direction.
A court of equity would not undertake to compel a con-
tractor to build a railroad or a warehouse, nor can it success-
fully enforce an agreement for the operation of a mine or a
manufactory. In the very nature of things, relief in respect
to matters of that sort would be out of the question because
not practicable. Here the court can not com[)el the defend-
ant to employ men to work his mine, operate his machinery,
furnish necessary supplies, produce the coal, and deliver it to
the complainant. A succession of continuous acts calling for
his personal services and for the exercise of his judgment,
experience and tact in reference to a complicated business,
can not be specifically compelled as would be necessary in this
instance. Indeed, the complainant seeks to avoid this diffi-
culty by praying for an injunction to restrain the selling of
the coal to others; but this would not give him the coal, nor
does it accord with his theory of relief that he needs this par-
ticular variety of coal to supply his trade. A court of equity
will not assume what it can not practically accomplish.
Another difficulty is that by the terms of the contract the
period was limited. That period w^as rapidly passing when
the bill was filed and has now expired.
In effect the complainant was merely seeking an assessment
of damages for a violated contract in regard to personal
property and personal services. A court of chancery could
not properly grant the desired relief. The decree will be
affii-med.
Decree affirmed.
Third District — November Term, 1890. 633
German Ins. Co. v. Miller.
The German Insurance Company
John O. Miller.
Fire Insurance — Policy — Correction and Reformation of— Estoppel
— App li cation — Conditions.
1. A court of equity will correct and reform a policy of insurance, where
by fraud, accident or mistake it has been improperly drawn, but it is not
necessary to seek such relief where the doctrine of estoppel may be applied.
2. A condition in a policy declaring that a mortf^afre or incumbrance of
the property mentioned therein avoids the pame, is not wholly broken by a
mortgage of a part of the property, consisting of separate articles, and
capable of specific valuation, and in such case the insurance would be
vitiated as to the piirt so mortgaged only.
3. Answers written in an application for fire insurance, by an agent,
without the assent of the applicant, will not bind him.
4. An insurance company can not insist upon non-ownership of personal
property covered, to avoid payment, where assured informed its agent at
the time the application was signed, that another person was interested in
a certain portion of it, but was told by such agent that the property could
be written in his name.
5. Conditions involving a forfeiture should be strictly construed.
6. A company will not be permitted to avoid a policy upon ground of
over-val nation of property covered, where its agent saw the' same at the
time the application Wiis filled out. and assented to the figures.
7. A mistaken or untrue statement of a material matter will not avoid
a policy, when the company or its agent knew the real facts, especially
where an agent fills up the application and knowing the real facts misstates
them, either purposely or by mistake.
[Opiuion filed June 12, 1891.]
Appeal from the Circuit Court of Logan County; the Hon.
Cyrus Epleb, Judge, presiding.
Messrs. Beaoh & Hodnett, for appellant.
Messrs. Blinn & Hoblit and E. Lynch, for appellee.
Wall, J. This was an action of asoumpsit upon a policy
of insurance, in which the plaintiff recovered a judgment for
634 Appellate Courts of Illinois.
Vol. 89.] German Ins. Co. v. Miller.
$826.25. By the appeal of the company the record is brought
here.
The policy covered a building called an implement house
and certain implements and machinery therein.
The evidence tends to prove that the agent of the company
solicited the appellee to make application for the insurance,
and induced him to sign the application; that when the appel-
lee so signed, only two of the questions were answered, viz. ,
as to the valuation of the property, real and personal, and as
to the description of the lots on which the building was
situate ; that these answers were written by said agent, and
that the answers to the other questions were subsequently
written therein by said agent, without the knowledge or eon-
sent of the appellee. There is but little conflict as to this part
of the testimony, the agent not appearing to deny what the
appellee has sworn and the only contradiction consisting of an
alleged admission by appellee to the adjuster, which appellee
says he did not make. Without discussing this branch of the
evidence in detail, it is sufficient to say that the jury had
abundant reason to accept the version of the appellee.
It follows, that as to all the answers so written by the agent,
without the assent of the appellee, the latter is not responsi-
ble, and the attempt of the company to escape liability,
because they are untrue, must fail. Tliese relate mainly to
the condition of the projierty as to incumbrances, to the prox-
imity of other buildings, and to the ownership of the
property. When appellee signed the application, he was
standing with the agent, in full view of the property, and
nothing was said by either of them as to any incumbrances, or
as to danger from adjacent structures ; but appellee did state
that he was not the sole owner of all the property, and that
one Naugle owned a share in a small part of it, to which the
agent said in reply, that appellee could take tlie insurance in
his own name and collect from Naugle his proportion of the
premium.
It hardly requires the citation of authority that under such
circumstances the company can not insist upon a defense
based on the ownership of the property. It would work a
Third District — November Term, 1890. 635
German Ins. Co. v. Miller.
gross fraud to successfully interpose such an objection. This
interest of Naugle's was as to some of the implements, mere
personal property. The clause in the policy upon which
reh'ance is placed, reads thus: ** or, if the assured shall not be
the sole and unconditional owner in fee siuiple of said prop-
erty." This language aptly refers to real estate, and not to
personalty. It is the language of the insurer, and when he
seeks to avail of it to produce a. forfeiture of his contract,
it should be construed strictly against him. It is hardly
sufficient to reach the present condition where a part only of
the property, and that personalty, was owned in partnership.
It is said, also, in the briefs, that by the verdict the jury
did not allow for this item, but, whether so or not, we think
there is no cause herein to disturb the judgment.
As to the alleged ovei^valuation contained in answer to the
first question, there seems to be nothing very substantial in
the proof. The agent saw the property and had reasonable
opportunity to judge of its worth. He was inclined to urge
appellee to make the policy as large as possible. Doubtless
his interest was in that direction. He assented to the figures,
indeed, appellee says he suggested them; and even though
they may have been rather too high, the company should not
be permitted to avoid the policy on this ground.
In the answer to the second question, tlie lots are described
as lots 3 and 4, block 7, of Lawndale. When this question
was asked, the appellee said he was not sure as to the descrip-
tion, but thought this was right. The agent said it was not
very important, but that lie was going to the county seat,
would examine the record in the clerk's office and would get
the proper description, "and put it in all right."
It now appears that the numbers of the lots and blocks were
correct, but that the property was in E wing's addition to
Lawndale and not in the original plat, which also contained
lots bearing the designation 3 and 4, in block 7, and it is
urged that this is such a misdescription as to render the policy
invalid in a court of law, where there is no power to reform it.
The suggestion is, therefore, that appellee should have
applied to a court of equity for a correction of the policy,
and that he is in no condition to recover at law.
636 Appellate Courts of Illinois.
Vol. 89.] German Ins. Co. v. Miller.
It may be remarked at the beginning that it was wholly
immaterial \yhether the property was in E wing's addition or
in the original plat of the towm; that it was in the full view
of the agent and he knew what it was. Ho was not misled
and the true description was a mere formality. He was insur-
ing that property regardless of its designation on the record.
Moreover he expressly undertook to examine the record
and correct the description, if necessary. He did not do so.
The error was carried into the policy. It was not discovered
by the insured until this trial.
Should he be required to dismiss this suit and go into a
court of equity ?
The policy provides that no suit at law or in equity shall
be sustainable unless brought within six months after the lose
may have occurred. If this provision is valid it would bar
the remedy by reformation miless some considerations might
appear excusing the delay. We do not undertake to say what
might be the result of such a suit, but we are very clear that
under the circumstances the appellee should not be driven to
that forum for relief.
It has been held repeatedly and is now the uniform cuiTcnt
of decision, that a mistaken or untrue statement of a material
matter will not avoid the policy when the company or its
agent knew the real facts; and especially is this true when the
agent fills up the application, and knowing the real facts, mis-
states them either purposely or by mistake.
This doctrine is frequently applied in the very important
issue often raised as to whether there was other insurance,
or whether the condition of the risk as to other buildinsfs was
truly stated. May on Ins., Sees. 497-9; Wood on Ins., Sees.
139-141, and notes.
Applying the same principle here, the objection now inter-
posed should be disregarded. The agent knew that there was
doubt as to the description, and he agreed to see that it was
made as it should be. Upon the common doctrine of estoppelj
the company should not be heard to set up this defense.
It should not be allowed to say, " true, we know you were un-
certain as to the number of your lots; ti'ue, wo told you it
Third District — November Term, 1890. 637
- —
German Ins. Co. v. Miller.
was not material, and that we would examine the record and
correct the description if wrong, and that we have not done
it though we knew you relied upon our assurance." It is not
easy to state a case where the doctrine of estoppel, now so fre-
quently and properly invoked in actions upon contracts of insur-
ance, would be more justly applicable than here.
There was no variance between the application and policy
or proofs, but the point is, that was a misdescription all the
way through.
In this State it is well settled that a court of equity will cor-
rect and reform a policy of insurance where by fraud, accident
or mistake, it has been improperly drawn. It does not follow,
however, that it is necessary to seek such relief in cases where
the doctrine of estoppel — an equitable doctrine now recognized
at law, may be applied. Courts of law, by adopting this doc-
trine, which forbids the assertion of the inequitable defense,
have rendered it unnecessary to invoke the aid of chancery.
In May on Insurance, Sec. 566, it is said that in most of the
States " courts of law will apply the doctrine of waiver and
estoppel so as to enable the plaintiff to maintain his action for
indemnity and not drive him to a court of equity." So it was
held in State Ins. Co., etc., v. Schreck, 27 Neb. 627, where
there was a misdescription of the land on whicli the insured
property was situated, the court quoting the foregoing extract
from May.
There is, however, another view of the matter which would
render the question of reformation not important The pol-
icy refers to the property insured thus :
*' Situated (except as otherwise provided) and confined to
premises now actually occupied by the assured, to wit, in the
county of Logan, lots 3 and 4, block 7, of Lawndale, 111,"
It might be a fair question whether, by this language, it was
intended to describe the lot and block mentioned as being in
any particular plat of Lawndale. It is "of Lawndale, 111."
Until it is shown that there are two plats — one the original,
and one Ewing's addition, containing, each, lots and a block so
designated, there is no difficulty; but when this appears there
is an ambiguity. The ambiguity thus produced is latent, and
G38 Appellate Courts of Illinois.
Vol. 39.] German Ins. Co. v. Miller.
■ I I lilt —^—1 11^— 1^^ .^^»^^^^^— »
maj be "holpon by averment" 1 Greenleaf on Evidence, Sec.
297.
If, however, it is the proper construction that the language
designates lots 3 and 4, block 7, in the original plat, etc., then
there is a description true in part, but not true in everj par-
ticular.
The first clause refers to "premises now actually occupied
by the insured," which in fact were in E wing's addition. It
was shown that the insured occupied no other property, and
the latter clause, if construed to refer to the original plat, was
a false description and may be rejected according to the maxim,
"Falsa dcmonptrat; non nocet." lb. Sec. 301; Sharp v.
Thompson, 100 111. 447.
In Am. Cent. Ins. Co. v. McLanatham, 11 Kan. 533, the
property insured was described as " his two-story frame dwell-
ing occupied by him, situate southwest corner Second and
Vine streets, Leavenworth."
As a matter of fact, the house was on the corner of Second
and £lm streets. It was held by the court: " In such case
the contract is not void for uncertainty, nor is there need of
applying for a reformation of the contract, provided it ap-
pears, either from the face of the instrument or intrinsic evi-
dence, which is the true and which the false description."
The opinion, by Brewer, J., proceeds at some length, citing
authorities and discussing the question involved, but further
quotation is unnecessary.
We are of opinion the defense here interposed, resting
upon supposed or actual misdescription of the insured prop-
erty, must be overruled.
It remains to consider the point vigorously pressed upon
us, that the policy was rendered invalid by subsequent mort-
gages placed upon two items of the personal property covered
by the policy.
The items were a stacker, mortgaged to Nichols & Shep-
herd, and a sheller, mortgaged to Pcgram. The verdict of
the jury evidently excluded their value, and the company is
thereby relieved from its contract to that extent It is urged,
however, that the eflFect of thus incumbering a part of the
insured property is to vitiate the whole policy.
Third District — November Term, 189D. 639
German Ins. Co. v. Miller.
The condition relied upon is as follows : * * * ^' or,
if the property shall hereafter become mortgaged or incum-
bered * * * then * * * thispolicy shall be null and
void." Here, again, it is to be noticed that the language
employed is the language of the company, and the condition
is invoked for the purpose of working a forfeiture, in order
that the company may escape liability under its contract, and
the rule of strict construction must be applied. It is not
provided that if the property, or any "part of it, shall become
mortgaged, but if the property shall, etc.
In terms, the condition has reference to an incumbrance
upon all the property; and applying the strict construction
required by the rule, it would seem quite clear, that had the
company desired to assert a forfeiture because of an incum-
brance upon a part, it should have used such language as to
leave no doubt.
Many authorities are cited by appellant which seem to hold
that the contract of insurance is entire and indivisible, and
where its conditions are violated by the insured as to part of
the property the whole contract is vitiated. The value and
force of these cases as precedent will, of course, depend greatly
upon the peculiar provision of the policies involved, as well
as the reasoning of the court.
It appears, however, that the current of decision is not
uniform or harmonious. It seems to be conceded by counsel
for appellant that where the insurance is placed separately,
that is, a specific sum upon each article, and especially so
where a specific rate is paid upon each, the policy would be
avoided only as to the articles mortgaged.
A ruling to this effect will be found in Com. Ins. Co. v.
Spankneble, 52 111. 53, where a part of the insured property
so specifically mentioned in the policy was sold, contrary to the
conditions of the policy.
Similar adjudications frequently appear in the books. In
some of them, separate items of property, in others undivided
interests, were alienated. In Sec. 278 of Bliss on Insurance,
the author commenting upon such cases, remaiks:
"Nor upon principle does it seem to be of any consequence
640 Appellate Courts of Illinois.
ft
Vol. 39.] German Ins. Co. v. Miller.
whether the valuation be separate and distinct or not. Surely
a merchant who insures his store and stock in trade or a
farmer who insures his barn and contents may recover for the
unsold balance of his stock, notwithstanding he daily sells a
portion of it. The diminution of insurable interest coincides
with a diminution of the right to cl^im for loss, and relatively
there is no change in the situation. To say that the policy is
thereby jpro tanto avoided, is not so correct an expression as to
say that the amount which the assured would have the right
to recover under it i^pro tatito reduced.
"Nor will the result be diflferent though it be stipulated that
the policy is to be void upon a sale of the whole or any part
of the property insured. Nothing short of a sale of the
whole will deprive the insured of his right to recover at all,"
et seq. In principle the effect of a sale should be the same as
of a mortgage or mere incumbrance of any sort.
Considering the conflict of authority in other States, and as
we have been referred to no ruling upon the question by the
Supreme Court of this State, we must adopt such view as
seems most consistent with reason and best calculated to pro-
mote justice in controversies between insurer and insured.
The modern tendency of adjudication is in the direction of
greater strictness in construing conditions under which foi^
feitures are set up by the companies and of applying with
greater freedom the equitable doctrines of waiver and
estoppel.
This tendency has been induced largely by the modern
methods of the insurance business, whereby the agents of the
companies solicit risks and in order to obtain them make rep-
resentations and assurances calculated to mislead and to Dro-
duce a want of care and scrutiny in reference to the language
used in applications and policies. Bliss on Ins., Sec. 499;
Union Mut. Ins. Co. v. Wilkinson, 13 Wall. (U. S.) 322.
Since the object of an insurance contract is indemnity, no
rule is better established than that in all cases the policy is
to be most liberally construed in favor of the assured. The
spirit of the rule is that where two interpretations equally
fair may be given, that which promotes the greater indem-
Third District — November Term, 1890. 641
City of Pana v. Humphreys.
nity shall prevail, and as the condition is always in language
chosen by the company, it should not complain. Bliss on Ins.,
Sees. 174-5j et seq.
Upon the point here involved we are inclined to hold that
as the condition is in terms against a mortgage or incumbrance
of 'Uhe property" mentioned in the policy, it is not wholly
broken by a mortgage of a part of the property, consisting of
separate articles and capable of specific valuation, and that in
such case the insurance would be vitiated as to the part so
mortgaged only.
It is urged by counsel for appellant that there are suspicious
circumstances connected with the loss which should be taken
into account, and that this consideration justifies the company
in its insistence upon all the conditions of the policy.
If there was fraud on the part of the insured he should be
made to suffer the just consequences thereof.
Doubtless, this matter was pressed upon the jury as fully
as the evidence warranted, and by the verdict they found
there was nothing substantial in the suggestion; nor do we
find anything so unusual or peculiar as to require special
notice. The action of the court in giving and refusing in-
structions was consistent with the views above announced.
We are disposed to hold that the judgment is responsive to
the merits, and finding no important error in the record it
will be affirmed.
Jvdgment affirmed.
39
106
641
80
The City of Pana
V.
E. A. Humphreys,
Practice — Default,
A defendant should not be defaulted where pleas on his behalf are on file
and undisposed of.
[Opinion filed June 13, 1891.]
YoL. ZZXIX 41
642 Appellate Courts of Illinois,
Vol. 39.J Litchfield Car and Machine Co. v. Roiuine.
In error to the County Conrt of Christian County; the
Hon. V. E. FoY, Judge, presiding.
Messrs. Gross & Broadwell and J. C. Quigq, for plaintiflF
in error.
Mr. E. A. Humphrey, jpro se.
Per Curiam. A declaration in assumpsit on the counmon
counts was filed against the city, on the 30tli of September,
1887. After several continuances by agreement, on Decem-
ber 10, 1887, plaintiff obtained tlie leave of court to file
special counts, but it does not appear that any were filed.
The record shows that on April 18, 1889, formal pleas of
non-assumpsit and set-off were filed on behalf of the defend-
ant. While these remained unanswered and nndisposed of,
on June 10, 1889, the court entered judgment by default
against it, and assessed the plaintiff's damages at S6i)0. That
this was error is well settled. Mason v. Abbott, 83 111. 445;
Sammis v. Clark, 17 111. 398; Parrott v. Goss, 17 III. A pp. 110.
Jieversed and remanded.
The Litchfield Car & Machine Company
V.
J. Milton Romine, Administrator.
Master and Servant — Negligence of Master — Personal Injuries —
Assumption of Risk — Evidence — Instructions,
In an action by an administrator to recover for a personal injury alleired
TO have been occasioned by a master's nef^lifrence, this court holds, in view
of the evidencei that the judgment for the plaintiff can not stand.
[Opinion filed June 12, 1891.]
Appeal from the Circuit Court of Montgomery County;
the Hon. J. J. Phillips, Judge, presiding.
Third District — November Term, 1890. 643
Ward V. Redden.
Messrs. Mo Williams & Son and James M. Tkuitt, for
appelJant.
Messrs. Lane & Cooper, for appellee.
"Wall, J. We have examined the evidence very carefully
and find it quite uncertain whether the alleged ''sag" in the
pipe, which is supposed to have caused the injury, was there
when the pipe was first put in place, or whether it was pro-
duced afterward ; it may have been the one way or the other;
but in either case, as the deceased helped and took an active
part in putting up the pipe, and as he ran the engine con-
stantly from that time up to the accident, a period of some
two years, there is much reason to say that he was chargeable
with notice of it and should have called the attention of the
employer to it if he considered it unsafe.
No one had a better opportunity than he to know how it
was and if he knew and made no complaint he assumed what-
ever of hazard and risk it involved. It was, therefore, error
to give the fourth instruction asked by plaintiflf, which must
have had a controlling effect upon the jury, and for the same
reason it was error to refuse the nineteenth and twentieth
asked by defendant. The judgment will be reversed and the
cause remanded.
Reversed and remanded.
William H. Ward
V.
-William Redden.
Principal and Surety — Action to Recover Amount Paid by Surety —
Limitations — New Promise,
In an action brought to recover a snm of money paid by plaintiff as snrety
upon a promissory note for defendant, this court holds that the evidence
faiN toestiiblish a new promise, the defense being the statute of limitations,
and that tho judgment for the plaintiff can not stand.
644 Appellate Courts of Illinois.
Vol. 89.] Foval v. ]?oval.
[Opinion filed June 12, 1891.]
In error to the Cirenit Court of Cumberland County; the
Hon. W. C. Jones, Judge, presiding.
Mr. W. S. EvERHART, for plaintiff in error.
Mr. Peter A. Brady, for defendant in error.
Wall, J. This was an action of assumpsit to recover a sum
of money paid by plaintiff as surety on a promissory note for
defendant.
The statute of limitations, five years, was interposed as a
defense, to which the plaintiff replied that the defendant had
promised anew within Hye years.
The verdict was for the plaintiff for $160, and judgment
was rendered accordingly.
We have carefully examined the evidence and are of opinion
that it wholly fails to establish a new promise. Applying the
rule as laid down in this State, we think the judgment should
have been for defendant. Keener v. Crull, 19 111. 191; Car-
roll V. Forsyth, 69 111. 127; Wachter v. Albee, 80 111. 47;
Haywood v. Gunn, 4 111. App. 161.
The judgment will be reversed and the cause remanded.
Reversed and remanded.
Mamie Foval
V.
Jesse Foval,
Divorce — A du Itery — Evidence*
1. It is for the jury in a jfiven case to determine the weight and effect
of the joint occupancy of one room by an unmarried couple.
2. Upon a bill filed by* a husband for a divorce, adultery upon the
part of the defendant being alleged, she filing a cross-bill setting up
adultery, cruelty and drunkenness upon his part, this court holds that oer-
Third District— Mat Term, 1890. 645
Foval V. Foval.
tain evidence tending to chow adultery of the defendant after the filing of
fiuch bill, was improperly received; that certain instructions given were
erroneous, and that the decree for the complainant can not stand.
[Opinion filed June 12, 1891.]
Appeal from the Circuit Court of Calhoun County; the
Hon, Cyrus Eplek, Judge, presiding.
Messrs. F. M. Greathouse and T. J. Selbt, for appellant.
Messrs. E. A. Pinero, J. E. Ward and H. C. Withers,
for appellee.
Pleasants, J. The bill herein was filed by appellee Jan-
uary 16, 1890, alleging the intermarriage of the parties about
the 30th of October, 1889, their cohabitation until November
25, 1889, appellant's desertion of him on that day and subse-
quent commission of adultery with one Isaac Foval and others
to the complainant unknown, and praying a divorce.
Her answer admitted that she married, lived with and
left him as alleged, but denied the charge of adultery. She
filed a cross-bill also, on April 10, 1890, averring that his
drunkenness, brutality and threats of violence against her
during the brief period of their cohabitation, justified her
leaving him as she did; that he never promised to change his
habits or conduct toward her, nor offered to take her back
or provide for her; and that soon after she left him, he went
to St. Louis and procured a woman of disreputable character,
pretendedly for his housekeeper, occupied the same room
with her at a hotel in that city for two days, there committed
adultery with her and now has her Irving with him at his
home. His answer thereto denied the allegation of miscon-
duct on his part during the cohabitation and adultery after-
ward. Replications having been filed, the court directed
the issue to be submitted to the jury, namely, whether she or
he or both had committed adultery after the marriage as
charged in the bill and cross-bill respectively. These issues
they found for the appellee, and a decree in his favor for
divorce was accordingly entered.
646 Appellate Courts of Illinois.
I II II - - — ^
Vol. 39.] Foval v. Foval. .
It was shown on the trial that at the time of the marriage
appellee was seventy-two years of age, living on his farm in
Calhoun County, with his three children, one of \^hom, the
youngest, not yet three years old, was by his second wife,
who died August 14, 1889.
Isaac Foval was his nephew, residing in St. Louis, where ho
was carrying on an express, dra^age and message business.
He was about thirty -live years of age and had been divorced
from his wife in 1886; a son of thirteen and a daughter of
ten years of age were living witli him. Appellant, then
about twenty-two years of ago, was his housekeeper and clerk,
as she had been for four years.
The parties first met at Isaac Foval's house, where appellee
and his wife wore on a visit in the preceding summer. On
his invitation, Isaac with his children and appellant returned
this visit in the latter part of August, in ignorance of tlie
death of Mrs. Foval, which had so recently occurred. Isaac
stayed only a day or two, but the children remained longer,
and appellant, at appellee's request, still longer, in all abont
six weeks, taking care of his children. During that time, she
says, he repeatedly proposed marriage to her, which she
refused. But a few davs after she left he followed her to St.
Louis, and after a few davs married her.
The evidence relied on as proof of the adultery charged in
the original bill was the testimony of one Herman Boekmer,
a blacksmith of St. Louis, who had been for some time em-
ployed by Isaac Foval to shoe his horses. He testified that
he had met a]){)ellant at Isaac's house some time in 1889, and
had seen her with him in his buggy going to and from his
house and office; that^bout the 6th of March, 1890, she sent
word to him (the witness) that she wanted to have a private
talk with him, and, pursuant to appointment, at ten o'clock in
the forenoon of that day, met him at the corner of Third and
Morgan streets, whence he took her to a wholly unfurnished
room in the rear of a saloon on the corner of Fifth and Carr
streets, without the consent or knowledge of the proprietor
or of anybody else, and there remained with her about four
hours, without a table, bed, lounge or chair, or anything to
Third District— May Term, 1890. 647
^^— — — ^i^^ll^M— ^— — ■ ■ ■ 1^— ^.^ ■■ ■■■■■■■■ ■■■■■■ ■■ ■■ » I ■ ■ I I ■■ ■■■■■.■ ■■ ■ I ■ I P
Foval V. Foval.
sit or lio upon, but the naked floor; that tliere they drank
beer and had sexual intercourse; that on that occasion she
asked him if Isaac Foval visited fast houses, and upon his
telling her that he held his horse while he (Isaac) went into
one, she got mad and said that from that time she would havo
nothing more to do with him; that though she and Maude,
his daughter, had slept together, the sport went on just the
same, but that she was now going to drop him. He further
testified that he never had sexual intercourse with her before
that time.
It will be observed that according to the witness the act
here referred to was committed nearly two months after tlie
original bill was tiled. It therefore could not have been
within the allegations of the bill. It formed no part of the
case made by it. Appellant was not called upon to anticipate
and meet this evidence of it. In our opinion it should not
have been allowed to go to the jury. Assuming that the
word " sport " in the statement attributed to her meant sexual
intercourse, and that the time referred to was subsequent to
the marriage, this alleged admission was only legitimate evi-
dence in the case tending to prove the charge of adultery as
made against her. To say nothing of the infirmities inherent
to this kind of evidence, the character of the witness as
depicted by himself, and of the story he told, and tlie manner
in which he came to be a witness in the case, in connection
with Lucas, are all circumstances wortliy of serious considera-
tion as touching his credibility.
He was wholly uncorroborated. Nothing was shown in
the previous conduct of appellant that would prepare one's
mind to believe his story against her. She denied it. She
also denied that she ever liad sexual intercourse with Isaac
Foval. Isaac also denied that charge. And tiiere were some
circumstances tending to corroborate them.
Upon this state of the evidence the court instructed the
jury as follows: "If you believe from the evidence iu
this case that Mamie Foval and Isaac Foval or Mamie Foval
and Herman Boekmer had sexual intercourse with each other
since the date of the marriage of Jesse Foval to Mamie Foval,
A
648 Appellate Courts of Illinois.
Vol. 39.] Foval v. Foval.
and before this suit was instituted, then the verdict should be
as to that issue as follows: We, the jury, find that Mamie
Foval did commit adultery since her marriage with Jesse Foval,
as charged in the bill for divorce."
There was not a particle of evidence on which to base the
hypothesis of adultery with Boekmer "before this suit was
instituted." Boekmer himself distinctly stated that he never
had sexual intercourse with appellant before March 6, 1800.
We think the insertion of this hypothesis, and the evidence
of adultery with Boekmer, were improper and well calculated
to prejudice the case of appellant
In support of the cross-bill it was abundantly shown that
during the brief period of cohabitation of these parties, appel-
lee was almost constantly drunk, and grossly abusive in word
and act toward appellant, and that she was uniformly kind and
dutiful toward hira and his children. It was not until he had
kicked her out of bed, had threatened, 'without provocation
and in tlie .presence of others, to throw her out of the wagon
and break her neck, to skin her and make whip crackers of
her hide, that she took advantage of his absence from home
to leave him and return to St. Louis.
The night clerk of the Hotel Western, St. Louis, testified
that appellee, with his little boy and a woman named Georgio
Thompson alias Georgie Brown, occuped the same room in
that hotel, containing but one bed and a lounge, two nights,
January 9th and 10th, 189u, and that when he showed them
to it he asked appellee if the woman was his wife and he said
she was. From there they went to his home in Calhoun
county, Illinois, where they slept in the same room, contain-
ing but one bed, for three weeks, and until there was talk in
the neighborhood about whitecapping them. There was also
evidence clearly tending to show that this woman's general
reputation as to chastity was bad. That they roomed togetlier
as above stated, they both admitted, but they both denied that
they occupied the same bed together or had sexual inter-
course, and gave as a reason for occupying the same room that
the child was strange to her and cried for his fatJier.
In reference to the evidence the court gave the following
Third District— May Term, 1890. 649
L. E. & W. R. R. Co. V. Wills.
iiistrnction : " The court further instructs the jury that un-
less the defendant, Mamie Foval, has shown by a preponder-
ance of all the evidence, that the joint occupancy of sncli
room by Jesse Foval and Georgie Thompson was for a crimi-
nal purpose, and that Jesse Foval did commit the adultery
charged in the cross-bill, the jury shall find for the complain-
ant, Jesse Foval, as to that issue.''
We apprehend that this instruction may have misled the
jury to suppose they could not properly find the fact of
adultery from such joint occupancy of a room as was here
shown, but that this must be supplemented by further proof
of the purpose and act of the parties. It was for the jury
to determine the weight and effect of such joint occupancy.
That fact, of itself, had some tendency to prove the purpose,
and the jury were authorized by the law to determine how
strongly it so tended and whether it was or was not overcome
by the other evidence. 2 Greenl. on Evidence, Sec. 46 et seq.
Thus the probable effect of the two instructions was to im-
properly strengthen the evidence against appellant and weaken
that in her favor. We think she ought to have another
trial.
Reversed and remanded.
The Lake Erie & Western Railroad Company
V.
John B. Wills.
BaiJroada — Neg ligenee of ^Crossing — Personal Injuries — Contributory
Negligence — Duty to Look and Listen — Practice,
1. The formal ad damnum appearing at the end of a given count applies
to all the connts that precede it.
2. It is proper in personal injury cases to ask a physician, testifyintr as
an expert, whether certain injuries* are permanent or not, and whether the
same are of a class that are necessarily painful.
3. It is as much the duty of a hand c»ir crew upon approaching, with
their car^.a street crossing, the greater port of which is occupied by a stand-
so 0Sf
l4fH 6Ul
650 Appellate Courts of Illinois.
Vol. 39.J L. E. & W. R. R. Co. v. Wills.
ing train, to use such care as will prevent injury to themselves, as others
approaching the same, having equal rights.
[Opinion filed June 12, 1891.]
Appeal from the Circuit Court of McLean County; tbe
Hon. Owen T. IIeeves, Judge, presiding.
Messrs. W. E. IIackedobn and A. E. Demakge, for appel-
lant.
Mr. Thomas F. Tipton, for appellee.
Pleasants, J. This was an action on the case for injury
to the person and property of appellee by collision of appel-
lant's liand car with his wagon, on its track, at the crossing
of Grand street, in the village of Say brook. Verdict and
judgment for Sn4,500.
Grand street runs east and west, and is fiftv feet in width.
Tlie railroad crosses it diagonally, northwest and southeast,
with a main track and a switch or side track about seven feet
apart, the easterly one being the switch. On July 18, 1889,
appellee with his wagon and team was hauling sand over this
crossing. On the occasion in question, he came from the
east to appellant's right of way on the next parallel street
south, and thence up, on the east side of the tracks, to Grand.
A train of five freight cars, extending from the street north-
west, stood on the switch, one car, and at least ten feet of
another, being within the street and occupying a considerable
part of the sixteen foot planking laid in the center for crossing
the tracks. To avail himself of this ])lanking he was obliged
to drive close to the car. The ground at the street south
was considerably below the tracks, rising to grade at Grand.
At the further end of this line of the cars was the cattle chute
and stock yards, and beyond them a cut.
By reason of these conditions appellee could not see up the
main track until he passed or nearly passed the freight ear,
when his horses would be about on it, or just going upon it.
As he reached Grand street and was turning west to make
Third District— May Term, 1890. Gol
L. E. & W. R. R. Co. V. Wills.
the crossing he heard the whistle of a freight train approach-
ing from the northwest. Thereupon he stopped, stood up,
and looking over the cars on the switch saw tlie smoke and
stack of the coming locomotive. The train was then so far
away that he could go on without danger from it; but the
more certainly to avoid it, "slapped up" his horses to huny
them, and when he was just over the switch and they about
stepping on the main track, was first able to see the hand car,
coming from the same direction and then within a few feet
of his team. Having but an instant to choose between an
attempt to back and going on, he "yelled to his horses and
they sprang forward," but it struck his front wheel, breaking
it and the single-trees and throwing him out on his arm and
head.
The men on tiie hand car, at some distance up the road,
had heard the noise of the freight train before it whistled,
and determined to run down to a point a little below that at
which the collision occurred and there take the car off to let
the freight pass. There is some conflict in the testimony as
to the rate of speed at which they were running. They say
from four to five miles an hour, while other witnesses thought
they were going as fast as they could. They further say they
could have stopped in twenty -five feet; that they did nut see
the team until Just as they struck it, and could not, because of
the freight car in the street, until it was too late for them to
avoid the collision. John Nelson, Jr. testified: "I believe
we could have seen a man coming in time to have stopped
the car before it struck the wagon, if the car hadn't been
there; " and, " I don't think we could have stopped the car if
we had seen Mr. Wills' team coming from behind the freight
car." " I don't think we could have seen plaintiff's team ten
or twelve feet before he got on the main track." Peter
Pierson said : " We were not far enough back when we could
have seen him, to have stopped the car."
To those who did not see it there was no notice of the
coming of the hand car except the noise it made. Appellee
did not hear that. A witness who was two and a half blocks'
west of the track, says he heard it. J3ut he had some advan-
652 Appellate Courts of Illinois.
Vol. 39-1 L. E. & W. R. R. Co. v. Wills.
tage of appellee with reference to it. He saw it coining and
his attention was drawn directly to it by the sight. He was
on foot and not in a rumbling two-liorse wagon. The wind
may have favored him. It does not appear that there was any-
thing between him and it, to obstruct or divert the sound.
The freight car on tlie street had been left there as it then
was, since the morning before. Appellee had hauled sand
over that crossing all of the previous day and knew its con-
dition and surroundings. On the occasion in question he was
cut off from sight and hearing of the hand car by intervening
objects. He was in charge of his team, giving it his attention.
Its movement may have made nearly or quite as much noise
as did that of the hand car. Until he lieard the whistle of the
freight train he had no reason to suppose there was a loco-
motive within five miles of the crossing, nor does it appear*
that any other was. He says: "I thought all I had to look
out for was the locomotive I heard." He did look out for
that. He knew that "considerable switching was done on the
side and main track at Saybrook," and *'saw hand cars going
sometimes;" but on this occasion he "didn't think about the
hand car."
This is the whole case on the evidence, from which it is suf-
ficiently clear that appellee's injury was not the result of a
pure accident. Either he or the defendant's servants, or both,
should be held responsible for it, and to determine which was
the oflice of the jury. What did appellee do that reasonable
care for his own safety forbade, or what omit that it required
him to do?
It is idle to suggest that he was careless with reference to
the coming train. Tliat was half a mile, and he but about
twenty feet from the crossing, when he started up to make it.
When it reached the crossing tlie hand car, wreck and victim
had been removed. There was ample time to cross ahead of
it without hurrying, and yet he was careful enough to hurry.
But it is said he should have taken the precaution to ascer-
tain, by looking and listening, that the track in the immediate
vicinity was clear; in other words, that no liand car was com-
ing and dangerously near; that the car in the street, obstruct-
Third District— May Term, 1890. 653
L. E. & W. R. R. Co. V. Wills.
*■■- - -
ing his view of the main track from his wagon, made the situ-
ation nnnsnally dangerous and required a proportionate degree
of care on his part. That is a general rule of law and reason.
It may have much force where the party asking the benefit of
it is not in fault for the existence of the unusual danger.
But here appellant's servants placed the car in the street and
left it there wrongfully. If, as between these parties, its
presence required unusual care in making the crossing, the
jury may have thought the defendant's servants were under
the greater obligation to stop the hand car to hear, and to get
out to see whether a team was approaching on Grand street,
or at least so reduce their speed before passing the freight car
as to be able to stop without colliding. They had no more
right to make the crossing than had the plaintiff, and were as
much bound to use care for the safety of themselves as others
having the same right, in making it.
This place was outside of the village settlement, though
within its platted bounds. There were but these two railroad
tracks. It was not shown that any other car was there besides
the five referred to, until the hand car appeared. No switch-
ing was being done. No locomotive was there to do it No
• train was coming, near enough to forbid plaintiff's attempt to
cross, and none would come without due warning to him. He
could not see the hand car from his wagon at any point of his
way until he passed the end of the freight, and did not hear
it. He did not think of it.
Was that a lack of ordinary care for his own safety?
Would reasonably cautious men, under like circumstances, no
other danger appearing or existing, look for, listen for, or
think of a hand car? This is a matter of opinion and judg-
ment, and although different minds might differ about it, we
see no sufficient reason for overruling the conclusion of the
jury. We also are inclined to think that unless there was
some circumstance positively calling attention to it, the sub-
ject of hand cars as a source of danger would have occurred to
the minds of a very few, at most, out of many persons in the
position of the plaintiff. 'The statute and ordinances do not
require any notice of their movement, nor prescribe any limit
8
■
I
G54 Appellate Courts of Illinois.
II ^
t Vol. 39.1 L. E. & VV. B. R. Co. v. Wills.
i ^ ^_^
to their rate of speed. Properly managed they are not dan-
gerous, in fact, without such notice, nor generally so reccarded.
It is said that he might and should have stopped, when he
did see it. The evidence tends to show that to avoid it he
would have had to back also. His horses had just been slapped
up, had the rein, and were hurrying. If not already on the
track, their heads must have been over it before they could
be stopped. Was it practicable to back out in time? And if
so, was it advisable? What would have been the effect on the
team of the rushing car so close to their heads, and how would
it have been left with reference to the freight train so soon to
pass? Appellee had every motive to pursue the course that
appeared to him to be the safest. The situation did not admit
of deliberation, and if tliat was not due to his fault, error in
judgment should not be attributed to carelessness. He doubt-
Jess did the best he could to judge rightly.
The following special interrogatory was submitted to the
jury: "Did plaintiff exercise ordinary care and prudence for
his own safety in attempting to pass over the crossing, and in
the manner shown by the evidence?" Their answer was,
"Yes." We think this was supported by the proof, and
must be held conclusive.
Their warrantforfinding the defendant guilty of negligence
has already been indicated. No excuse appears for its leav-
ing the freight car on the street as it did, and the effect of
that fault is shown by its own witnesses. In view of that,
the jury could well find also that the manner of running the
hand car was wrongfully negligent.
The declaration is in four counts, of which the first charges,
generally, that the defendant's servants carelessly drove
the hand car; the second specifies the leaving of the freight
cars where they were on the side track, as the act of negli-
gence which was the cause of the injury; the third avers
that the defendant's servants were driving a hand car on said
railroad toward said crossing and gave no notice to plaintiff of
their approach, and so negligently drove said hand car that it
struck his wagon, throwing him out and thereby injuring
him; and the fourth, that defendant with force and arms
Third District— May Term, 1890. 655
L. E. & W. R. R. Co. v. Wills.
assaulted plain tiflf and with a hand car etnick his wagon, etc.
The formal ad damnum^ which is in $5,000, appears at the
end of the third count, and nowhere else in the declaration.
It is said that therefore the plaintiff could recover under that
count only; and in this case, not under that; because there was
no evidence that the defendant was possessed of, or operating
the railroad or the liand car, or that the men running it were
the defendant's servants, as therein averred.
We know of no such rule of pleading as that here stated.
Perhaps the fourth count was obnoxious to a special demur-
rer. That count was evidently added after the declaration
had been completed, and is of no importance. The ad dam-
nu7n applies to all the counts that precede it. Burst v.
Wayne, 13 III. 599. It is neither necessary nor customary to
put it in each.
The relation of the defendant to the railroad, as possessor
and operator, and to the men in charge of the hand car, as
master, was not a real issue in the case. That was assumed
and conceded, and the case tried on that theory by both par-
ties. Thus the first instruction asked by the defendant and
given, was, " That the J'aot that one of defendant's freight cars
was standing on the side track * * * did not relieve the
plaintiff from exercising ordinary care," etc. The fifth was,
*' That the railroad company had a lawful right to have its
stock pens and cattle chute on the line of its right of way
between Grand street crossing and the river * * * and
any number of cars standing on its switch or side track outside
of the line of intersecting streets," etc. The first modified
instruction for defendant was, " That the defendant had aright
to have a hand car on the track of its railroad," etc., and the
modification did not affect that statement. The omission of
positive formal proof on this point was not suggested before
the verdict was rendered. If it had been, the court would
have allowed it to be supplied. This objection comes too
late, and with too little merit in itself.
Dr. Winter was asked to " state whether, in a man of his
age, those injuries are permanent or not," and " were the in-
juries he received of a class that were necessarily painful?"
656 Appellate Courts of Illinois.
Vol. 39.] Bridges v. The People.
Counsel think the questions were leading. We do not. It
was discretionary with the court to allow or refuse to allow
defendant to impeach its own witness, Greene. The affidavit
relating to him, and the paper he is said to have signed, are
not in the abstract
No material en'or is perceived in giving, modifying or re-
fusing instructions. In the clause in the ninth, given for
plaintiff — "but also an impairment of the plaintiff's general
health, which is shown by the evidence,'^ the context shows
the word "an " was intended to be " any," and it was doubt-
less so understood. We do not approve it as corrected, bnt
have no idea that it did any harm.
It is, of course, difficult to estimate the damages to plaintiff.
He suffered from concussion of the brain, making him del ir-
ons most of the time for ten days. One bone of his wrist was
broken and the other dislocated. The arm was kept in splints
six weeks, and is seriously and permanently crippled. He was
almost entirely deprived of the sight of one eye by tromatic
cataract. His neck, shoulders and body were badly bruised
and perhaps there was serious internal injury. He suffered
great pain — continuing to the time of trial. He has not
been able to do any work since the injuries were received.
The damages allowed may seem to be large. We are not as
able to judge of that as was the Circuit Court and jury. On
the whole we see no sufficient reason for interfering with
their judgment. Judgment ajfirmecL
99 066
-^* ^ James M. Bridges
V.
The People of the State of Illinois.
Criminal Law — Act Concerning Propagation and Cultivation of Fishes
— Use of Seine,
A pond that, is private property is not included within the terms of the
Btatute prohibitinpr the catchinj? of fish with seines or similar devices in
" water-courses wholly within or running through the State of Illinois.*'
Third District — November Term, 1890. 657
Bridgefl v. The People.
, [Opinion filed June 12, 1891.]
Appeal from the Circuit Court of Sangamon County; the
Hon. J. A. Creighton, Judge, presiding.
Messrs. Palmer & Shuti, for appellant
Messrs. John C. Mathis, E. S. Smith and A. J. Lester,
for appellee.
Conger, P. J. This was a prosecution against appellant to
recover the penalty imposed by the act entitled : ** An act to
encourage the propagation and cultivation, and to secure the
protection of fishes in the waters of this State," as amended
by act of June 3, 1889, Session Laws of 1889, page 159. The
sixth section of said act is as follows :
" That it shall be unlawful for any person to catch or kill
any fish with any seine or any other device used as a seine,
in or upon any of the rivers, creeks, streams, ponds, lakes,
sloughs, bayous or other water-courses wholly within or run-
ning through the State of Illinois. * * * Any person so
ofl'ending shall be deemed guilty of a misdemeanor, and fined
as provided in this act." The case was commenced before a
justice and appealed to the Circuit Court, where it was tried
by the court without a jury upon the following agreed state
of facts.
Jacob Miller is the owner of the northwest quarter of sec-
tion eight in township fifteen north, range three, west of the
third principal meridian, in Sangamon county, Illinois, in
which what is known as Sand Prairie Lake is situate.
The small body of water known as Sand Prairie Lake is
about one-quarter of a mile in length, and its width ranges
from about twenty-five yards to one hundred yards.
It is situate in the bottom of the north fork of the Sanga-
mon river and is distant from said river only a few yards at
the farthest point. There is a low place or depression in said
northwest quarter of section eight, reaching from the north
end of said lake or pond, to the bed of said river, at most
Toi. XXXIX a
658 Appellate Courts of Illinois.
Vol. 39.] Bridges v. The People.
seasons of the year; but in ease of high water this depression
or slough fills with water and connects directly the waters of
this pond or lake with the waters of said stream or river, and
at times this connection lasts for a period of several days or
weeks. The rises in the said river or stream generally occnr
in the spring of the year or the early summer, and again in
the fall. When there is no high water in tlie said river or
stream, the said lake or pond is entirely slmt in, and its waters
do not mingle at all with the waters of said stream.
In July of 1889 the defendant, James Bridges, obtained the
consent of said Jacob Miller to fish with a seine in said body
of water, so situate on liis premises, and to catch and kill fish
in said pond with a seine.
After consent was given defendant by Jacob Miller so to
do, the defendant with the help of others went in and upon
said pond, and with a large seine, with meshes of one and
one-half inches and about seventy-five yards long — not a min-
now seine — dragged said pond or body of water, and caught
and killed thereby a large number of fish of dififerent kinds,
of the varieties common to the waters within the State of
Illinois.
The north fork of the Sangamon river is not a stream or
river used for navigation, nor is the said pond navigable or
used for navigation. Upon the foregoing facts the court
fined appellant 810 and costs, and he appeals.
" By the common law a right to take fish belongs so essen-
tially to the right of soil in streams or bodies of water, where
the tide does not ebb and flow, that if the riparian proprietor
owns upon botli sides of the stream, no one but himself may
come upon the limits of his land and take fish there; and the
same rule applies so far as his land extends, to wit, to the
thread of the stream, where lie owns upon one side only.
Within these limits, by the common law, his right of fishing
is sole and exclusive, unless restricted by some local law or
well established usage of the State where the premises may
be situate." Beckman et al. v. Ki*eamer et al., 43 111. 447,
and authorities there cited.
Without questioning the power of the Legislature to
Third District — November Term, 1890. 659
Hridjfea v. The People.
regulate the manner of taking fish in all public waters of the
State, and without noticing the further question of how far
such regulation could lawfully extend to private or individual
waters, the only question we are required to decide in the
present case is, does a proper interpretation of the law of
1889 above quoted include within its terms the pond in ques-
tion, under the facts as they are stated in the agreement.
We are clearly of the opinion that it does not.
It is insisted by counsel for appellant that the words ''or
other water-courses," limit the meaning of the preceding
words, so that no pond, lake, slough or b^you would bo
within the act, unless such places came within the definition
of water courses, that is, a stream usually flowing in a partic-
ular direction in a definite channel having a bed, sides or
banks, etc. We are not prepared to assent to this proposi-
tion.
We think there might be bodies of water denominated as
ponds, lakes, sloughs or bayous of such magnitude, and with
such connection with the rivers or streams of the State as to
come within the provisions of the law. The rule for deter-
mining this question would seem to be: Is the body of
water private property; has the owner of the soil on which
it is situate, the lawful right to alter, change or destroy it by
drainage, filling it up, or by any other means that might suit
his interest or pleasure, without regarding the wishes or
interests of the general public or third persons ? If so, then
it is private property and is not included within the spirit and
meaning of the law.
No one can exercise such control over the smallest creek or
rivulet in the State. He must not permanently change its
course, or injure its waters, but must allow them to flow
through his premises for the benefit of others.
There might also be ponds, lakes, sloughs or bayous so
situated as to become a part of the public waters of the State,
so that the owners of the soil beneath them could not law-
fully interfere with their use by the public, and in such cases,
we think, the statute would apply.
Counsel for appellees in their brief, say: " We do not dis-
660 Appellate Courts of Illinois.
Vol. 39.J Bridges v. The Peopre.
pute Miller's right to prevent the entrance or escape of fish
into or from this lake at pleasure. We do not deny that he
might fill the lake if he chose, and in that way destroy the
fish.''
No one, we presume, wonid deny this right to Miller,
ander the facts as stated, and the conclusion to our minds fol-
lows, that he could have no such right in any water wherein
the public have rights, or over which they projiose to exer-
cise jurisdiction or control in the manner of taking fish.
The judgment of the Circuit Court will be reversed.
Judgment reversed.
INDEX.
ACCOUNT.
1. This court declines, in view of the evidence, to interfere with a
decree for the defendant upon a bill filed for an accounting. Wilson v.
Dotcse, 127
2. In an action to recover a balance alleged to be due upon an
account, this court declines, in view of the evidence, to interfere with
the verdict for the plaintiff. Osborne d^ Co»y, Meyerott, 425
ADMINISTRATION".
1. Before a County Court can order the sale of a decedent*8 land
for the purpose of paying debts, it must ascerlain that the personal
esitate left by the decedent, and which has or should come to the hand!^
of the executor or administrator, isinsutficient to pay them. Rowland
V. Swope, 514
2. Heirs are not to be held as sureties for the faithful performance
by an administrator of his duties, nor are their rights dependent upon
bis integrity or negligence. Jd., 514
3. The real estate of a deceased person should not be ordered sold
by the County Court for the payment of debts, where it appears there
has been a suflBciency of personal assets to pay the same, bift that they
have been wasted by the administrator or executor, and never applied
to such payment. Id,, 514
AGENCY— See Insurance, 5, 8, 22, 23.
1. In an action brought by commission merchants to recover a bal-
ance alleged to be due from defendant and another, this court holds
that said persons were individually liable therefor; that a certain
amendment of the declaration was proper, though made after verdict;
and declines to interfere with the judgment for the plaintiffs. Meiz v.
Wood, 131
AMENDMENTS— See Agency, 1; Husband and Wife.
APPEAL AND ERROR— See Practice.
1. Upon appeal from the finding of a jury in a case tried before a
justice, he failing to enter a formal judgment therein, the successful
party may for such reason require a dismissal of the appeal, but a
motion to dismiss the suit amounts to admitting jurisdiction as having
been obtained by the appeal, and where the case is of such a kind that
the court below had original jurisdiction, and to' which such party
(661)
662 Appellate Courts op Illinois.
APPEAL AND ERROR. Continued.
could submit his person without process, be sbould not, having done
80, be allowed to question the jurisdiction thereof. Northrup v.
Smothers, 588
ARREST— See Trespass, 3.
ATTACHMENT— See Replevin, 1.
ATl^ORNEY AND CLIENT.
L In an action brought by atforneys to recover from a municipality
for fees earned and disbursements made in certain suits, this court
declines, in view of the evidence, to interfere with the verdict for the
plaintiffs. Toicn of Sheldon y, Burry, 154
2. This court declines, in view of the evidence, to interfere with
the judgment for the plaintiff in an notion brought by an attorney io
recover foes for services rendered. Tim merman v. Pusey, 528
BANKS — See Interest, I,
BASTARDY.
1. In a prosecution for bastardy, where the evidence was conflicting,
it is held that the verdict was sufficiently supported by the evidence.
Common v. People of State of Illinois, 31
2. Evidence to show that the prosecuting witness testified differ-
ently upon a former trial is competent in such cases, but where it
appears that the exclusion of such testimony probably did the defend-
ant no harm, the discrepancy attempted to be shown being immaterial,
the court may refuse to reverse the judgment. Jd,, 31
3. At common law the father of a bastiird child was under no obli-
gation to support the same. The liability is statutory, and exists only
when the mother is an unmarried woman. Vetten v. Wallace^ 3V0
4. The presumption is, that a child born in wedlock is legitimate,
and this presumption the mother will not be heard to denj*. 7rf., 390
6. Where, in an action by a married woman to recover for the sup.
port of an alleged bastard child, from the father thereof, the defendant
shows by his plea that the plaintiff was the mother of the same, and
had at the time of its birth a husband, such plea effectually meets an
allegation in the declaration that defendant was the father, /(f., 390
BILLS OF EXCEPTIONS— See Practice. 7, 8. 9, 26, 27, 48, 49.
1. A recital in the judgment, by the clerk, that a motion was made
for a new trial, is a nullity. The fact that such motion was made must
' appear in the bill^ of exceptions signed by the judge. Burnett v.
Snapp, 237
BRIDGES— See Highways, 6.
CONSTABLES.
1. In an action brought to recover from the defend mt for aiding a
constable in wrongfully removing personal property of the plaintiff,
the same never having been returned, this court declines, in view of
the evidence, to interfere with the judgment in his behalf. Wilbur v.
Turner, 626
Index. 663
contempt.
1. In proceediDffs against a clerk of court for contempt, be having
failed to obey an order (hereof touching one of his official duties, it
mast be shown to convict him that he wilfully intended to disobey
or obstruct the same. Dines v. The People, 565
2. It will not necessarily be presumed in such case that the clerk knew
the contents of such order when be filed the same. Id,^ 565
8. A court can only take judicial notice of such acts and proceed-
ings as will properly go upon the record, and the knowledge, opinion
or recollection of the judge in such case, that the clerk did know the
contents of the order, is nis personal and not his judicial knowledge*
Id., 665
CONTRACTS.
1. A contract, made and payable in trade, without time or place
for payment, is payable on demand or within a reasonable time, and at
the residence or place of business of the promisor, and before the
promisee is entitled to a money judgment against the promisor for
non* performance, he must show a demand on his part and a refusal on
the part of the promisor. Schriner v. Peters^ 309
2. The doing or consequence of an unlawful act can not be made the
consideration of a contract. Vet ten v. Wallace^ 890
8. Where, under a contract to do a certain thing, the contractor is
bound to make certain tests, and is prevented from doing so by the
contractee, he will be excused from the performance of such require-
ment. IVilderman v. PUfSy 416
4. In an action brought to recover upon a contract to dig a well,
this court holds that the jury were justified in finding that the well,
when finished, was of the capacity, and would furnish the supply of
water required by the terms of said contract ; that the evidence estab-
lished the fact that the plaintiff was prevented by the defendants from
testing the well after it was finished, and declines to interfere with the
verdict for the plaintiff, although the same is for less than the contract
price. Id., 416
5. In an action brought to recover upon a contract touching the use
of a certain boat, this court declines, in view of the evidence, to inter-
fere with the verdict for the plaintiff. Robinson Floating Museum
Co, V. Uauptrntmn^ 441
6. A person may prove the existence of a separate oral agreement
as to matters upon which a written contract is silent, and which is not
inconsistent therewith, if it can be inferred that the parties did not
intend the writing to be a complete and final statement of a given
transaction, and this rule applies to parol agreements as to how a writ-
ten contract is to be performed. Razor v. Razor, 527
7. In an action brought by a married woman upon a written con-
tract executed by her husband, and certain parol provisions not con-
tained therein, the substance beinsr an agreement upon the part of the
husband, in consideration of the wife signing a deed of conveyance of
their home, to invest in her name the proceeds of the sale thereof in
664 Appellate Courts of Illinois,
CONTRACTS. Continued,
another house in a different place, this court holds that the plaintiff's
existing interest in the property being sold by her, formed the consid-
eration for the undertaking uoon the part of the defendant to furnish
the other house; tha it was a good and sufficient consideration
to support the agreement; and declines to interfere with the judgment
for the plaint iff. Id., 527
8. Where no time is fixed, the law will imply that material for a
given purpose is to be furnished within a reasonable time, which will
vary with circumstances. Truesdale Mfg. Co. v. Hoyle, 532
9. Where a person so agreeing to furnish, knows that the purchaser
is required to complete a given contract within a certain time, he con-
tracts with this fact in view, and takes the risk of delay arising from
the pressure of other engagements and from possible failure to obUiin
certain articles necespary to enable him tp so furnish. Id., 582
10. It is proper in an action instituted to recover an amount
alleged to be due from a contractor, where the latter contends that he
has been injured through delay in furnishing the goods in question, to
allow such contractor to ^uow that certain subcontractors have collected
from him by suit damages for delays caused them in the performance
of their contracts; such judsrments are not conclusive ^^ against those
who were not parties to it, but they tend to show the damage as claimed
by such contractor. /(?., 532
CRLMINAL LAW— See Municipal Cohporattons, 22.
1. Where a pharmacist entitled to registration pays his fee, he is
entitled to proceed in his business until the expiration of the year, and
he can not be held liable in a criminal prosecution because of the non-
action of the board of pharmacy. Id-, 506
DAMAGES— See Contracts, 10; Highways, 1; Nkgltgence, 4.
1. Punitive damages are admissible where the injury is wantonly
inflicted, and are visited upon the wrongdoer by way of mere punish-
ment, regardless of the amount of damages actually sustained. L, E.
dt W. Railroad v. ChrisHson, 495
2. The indignity suffered by reason of the unlawful act of another
in a proper subject of compensation, whether the act was wanton,
malicious or wilful, or whether it was merely negligent or mistaken.
Id., 49c
8. What the indignity is in a particular case is a question of fact
for the jury. Id., 495
DIVORCE.
1. It is for the jury in a given case to determine the weight and
effect of the joint occupancy of one room by an unmarried couple.
Focal V. Foval, 644
2. Upon a bill filed by a husband for a divorce, adultery upon the
part of the defendant being alleged, she filing a cross-bill setting up
adultery, cruelty and drunkenness upon his part, this court holds that
certain evidence tending to show adultery of the defendant after the
\
Index. 665
DIVORCE. Contimied.
filing of such bill, was improperly received; that certain instructions
given were erroneous, and that the decree for the complainant can not
stand. Id.f 644
DRAINAGE.
1. Drainage commissioners are public oflScers who may, in proper
cases, be ousted by quo warranto. The Legislature has the power to
alter or repeal the drainage law and may provide for the removal ot
one set oF officers and for the appointment of another set in a different
mode. Smith v. The People, 238
2. A drainage district is a public, involuntary, quasi corporation,
and in the absence of special enactment is not liable for the wrongful
and unlawful acts of its agents done in the execution of corporate duties
and powers. McGiUia v. Willis, 311
8. Where the drainage commissioners merely acted under the order
of the County Court in letting the contract for the work complained of
and had no immediate supervision of its execution, they are not per-
sonally ILible for injuries reEulting from the prosecution of the work*
id., 311
4. In an action brought to recover damnges for the overflow of
plaintiff's land, resulting from the construction of a dam, wluTe it
clearly appeared that the erection of the dam was necessary to the feasi-
ble and economical prosecution of the work of the drainage district, it is
held: That the plaintiff's claim for damages was, or might have been,
passed upon in the assessment of damages in the drainage proceedings,
and that the matter was res adjudicafa. Id., 311
DRAM SHOPS.
1. Where a license to sell intoxicating liquors is issued under an
ordinance regular on its face, purporting to have been passed by the
board of trustees of the village, and signed by the village president and
duly published, such license, when accepted and paid for in good faith,
is a defense against a criminal prosecution for selling liquor, althoucrh
the ordinance in question was not legally passed. Hanks v. The
People, 223
2. In an action brought by a minor by next friend, under the Dram
Shop Act, to recover for alleged injuries to plaintiff's means of support
by reason of defendant's sales of intoxicating liquor to plaintiff's father,
thereby causing the death of plaintiff's father, heid: 1st, that the evi-
dence failed t>o show that the death of plaintiff's father was caused by
the sales of liquor shown, and 2d, that the evidence did not sufficiently
show that plaintiff had suffered in his means of support through the
death of his father. Wesiphal v. Austin^ 230
3. This court affirms, in view of the evidence, a judgment for the
plaintiff, in an action brought by a widow under the Dram Shop Act,
to recover from saloon keepers for injury to her means of support by
reason of the death of her husband, the same being alleared to have been
caused by liquor sold or given by them to him. Campbell v. Magruder,
C04
666 Appellate Courts of Illinois.
DRAM SHOPS. Continued,
4. In the case presented, this court holds as proper the allowance of
hypothetical questions on the basis of the undertaker's statements as to
the contents of the dead man's stomach. It was for the jury to deter-
mine its weight. Id., 604
EJECTMENT— See Real Pboperty, 1, 2.
EMINENT DOMAIN.
1 . Land held for a public use can be condemned for another public
use when the latter is different from the former, and not inconsistent
with or destructive of, the rig^ht of the public under the first. Davis
V. Nichols, 610
2. The public square of a village can not be appropriated as the site
for a school house. Id., 610
ESTOPPEL— See Insdbance, 17; Real Property, 1.
EVIDENCE— See Bastardy, 2; Contempt, 8; Divorce, 2; Insurance,
4; Municipal Corporations, 13; Practice, U, 33, 45.
1. Whether it was error to admit in evidence the record of the trial
and acquittal of plaintiff on an indictment for malicious mischief,
quoere, Wihnerion v. Sample, ' 60
2. Proof of delivery of goods to and their shipment by a common
carrier to u consignee, suitably and properly billed and directed, is just
as strong and effectual prima facie evidence of their receipt by the
consignee, even if r^uch consignee is the agent, of the consignor, as it
would be if the consignee were the purchaser of such goods. Piano
Mfg. Co. V. *Parmenfer, 270
3. Evidence as to directions given by a contractor as to pushing a
certain work may be admitted in a given case, where the same had
reference to the methods adopted as to the work in hand. Truesdafe
Mfg. Co. V. IToy/tf, t532
4. Where a witness has testified in the usual way to the genuine-
ness of a disputed signature, it is not proper upon cross-examination,
to submit to him others known to be genuine for comparison with it,
and a statement to the jury of the difference between them as they
may appear to him. Bevan v. Atlanta National Bank, 577
6. The authorship of a writing may be shown by other circum-
stances than the likeness or unlikeness of a given handwriting to that
of the alleged writer, such as a marked peculiarity in its spelling or
. style of composition characteristic of the alleged writer. Id., 677
6. In an action brought to recover upon a promissory note, the
defense being that the name of one of the alleged signers thereof, a
person deceased, was a forgery, this court holds as proper the exclusion
of several questions sought to be asked certain witnesses upon cross-
examination, touching the difference between signatures submitted,
and others, as to the ownership by them of similar notes, and declines
to interfere with the judgment for the plaintiff. Id., 577
7. If. upon inspecting a printed book or pamphlet of ordinances, it
can bo determined from any part of it that it purports to be published
by proper authority, it is enough. Village of Wapella v. Davis, 592
Index. 667
EVIDENCE. Coutinued.
8. .The fact that such ordinances, certified in accordance with Sec.
4 of Art. 5 of the ** Cities and Villaifea Act " are printed copies of the
originals instead of written, can make no difference as to their admis-
sibility in evidence in a iriven case. Id,t 392
9. Upon a suit orought by a municipality to recover from defend-
ant a penalty for failure to pertorm road labor on its streets, in con-
formity with the requirements ot one of its ordinances, this court houls
as erroneous the exclusion of the book of ordinances tbereo^ offered in
evidence by the plaintiff, and that ^e judfl:ment for the aetendarit can
not stand. Id , 592
10. It is proper in personal injury cases to ask a physician, testify-
ing as an expert, whether certain injuries are permanent or not, and
whether ihe same are of a class that are necessarily painful. L. E. <0
W, By. Co. V. WiUs, 649
EXECUTIONS— See Homestead, 4.
EXEMPTIONS.
1. Where a debtor makes out, signs and swears to a schedule of his
property, and leaves the same at a place agreed upon for the officer, it
amounts to a delivery where the understanding is that the officer shall
call 'there for it. Miller y , Rolen, 350
FISH.
1. A pond that is private property is not included within the terms
of the statute prohibiting the catching of fish with seines or similar
devices in " water-courses wholly within or running through the State
of Illinois." Bridges v. The People, 656
FORMER ADJUDICATION— See Dkainagr, 4.
FRAUD — See Mortgages, 5, 6; Negotiable Instruments, 3; Real
Property, 1.
GAMING — See Negotiable Instruments, 2.
1. IJnder the laws of this State all manner of gambling obligations
are void in the hands of everybody, and such obligations can never be
made valid by any renewals or transfers to innocent purchasers,
'i'herefore a trust deed, given to secure a note given in payment of a
gambling debt, though once renewed, and transferred to the hands of
an innocent purchaser, is void. International Bank of Chicago v.
Vanhirk, 23
GARNISHMENT.
1. Garnishees are not liable for costs, but for the amount in their
hands belonging to the debtor in attachment; and the attaching cred-
itor can mnke a demand that will be availing only by suing out the
writ and causing it to be served on the garnishees; and from the time
of service the money then in their hands, belonging to the debtor in
attachment, becomes subject to the legal claims of the attaching cred-
itor against such debtor. Ham v. Peery^ 341
2, The proper practice in such cases is to enter judgment against
668 Appellate Courts of Illinois.
GARNISHMENT. Continued.
- the garnishee in favor of the defendant in attachment for the benefit oE
the attachment creditor, and whatever surplus there maybe after paj--
ing tae creditor and costs, belongs to the debtor in attachment. Jd.,
841
GUARANTY— See Sales, 8.
1. In an action brought to recover upon the guaranty of certain
promissory notes, this court holds that in view of a contract between
the parties hereto, calling for the indorsement by defendant of certain
classes of notes received in a given business, the liability was a contin-
uing one, and required such indorsement, when the contingency pro-
vided for arose, and that the contention upon the part of the defendant
that the guaranty in question was a sulxsequent transaction and was
obtained without any new consideration, can not avail him. Witidefs
V. Milwaukee Harvester Co., 521
GUARDIAN AND WARD.
1. In the absence of evidence to the contrary, it will be presumed
that a guardian might have kept funds of his ward at int-erest. Steyi r
V. Morris, 382
2. Where f^uch funds continue to be in excess of expenditures in
behalf of the ward, fciilure to so invest at reasonable intervals will
render the guardian liable for interest. Id., 882
3. The estate of a ward should not be charged for legal services
rendered his guardian, in a controversy arising through such guardian's
fault. Jd., 382
HIGHWAYS.
1. In an action brought against highway eommisflioners, in their
individual capacities, to recover damages alleged to have been fus-
tained by plaintiff through the 'drainage of water upon his land, it is
held: That the evidence failed to show that plaintiff had suffered any
appreciable damage from the acts complained of; (hat plaintiff's hmd
was servient to that from which the water was drained, and that in a
state of nature the water flowed in the same direction as it did after
the acts complained of were committed. Crohen v. Ewers and Snif-
der, 84
2. It was competent in the case presented, for qualified witnesses
to give their opinion as to whether the plaintiff's land was damaged by
the acts complained of. Id., 84
3. Compliance with the statutory requirements as to the giving
notice, by highway commisRioners, of a hearing upon a petition to lay
out a new roiid, is jurisdictional, and evidence that notices were properly
posted must by preserved. Johnson v. Stephenson, 88
4. Highway commissioners may properly refuse to entertain a peti-
tion touching the locution of a road, the real object thereof being
to locate a disputed boundary line between land owners. People v.
Davis, 162
5. The commissioners of highways have the right to control the
amendment of a record according to the fact, and to order the clerk to
make the amendment accordingly; and when the record is once
Index. 669
HIGHWAYS. Continued.
amended in a proper and lesral manner, it has the same force and effect
as though originally made as amended, and can no more be contradicted
by parol than any other lawful record. County qf DuPage v. Martin ,
298
6. Upon an application by a town board of road comminsioners to
the board of county supervisors for the payment by the county, tinder
Sec. 19, Roads and Highways and Bridges Act, of one-half the expense
of the construction of a bridge, the supervisors must not refuse the
application because there is no formal proof of the facts alleged in the
petition; but the petition, if it states the jurisdictional facts, with the
affidavits and estimates, constitutes a prima facie case. If the Buper«
visors have doubts as to the alleged facts, it is their duty to investigate.
Id,, 298
7. In a mandamus proceeding by the commissioners against the
county, the court may receive evidence that was not before the super-
visors. Id. , 298
8. The term highway includes all kinds of public ways, and as used
in Sees. 77 and 78 of the Railroad and Warehouse Act would include a
street in a city and should be so applied, unless it is apparent that by sonie
other legislative provision the exclusive control and jurisdiction over,
and the right to prevent obstructions to such streets has been vested in
the local municipality. OhiOt I. dt W. Ry, Co. v. People of State of
III., 473
HOMESTEAD.
1. A husband can have a homestead in his wifc*s property to the
same extent as if the title to the property was in himself; he can have
but one homestead. If it attaches to property owned by the wife
he can not have another in property, the title to which is in him-
self. Herdman v. Cooper, 830
2. Where a debtor resides upon a lot worth more than $1,000, it
alone is his homestead, although other lots are within the same inclos-
ure and used for family purposes. Id., 330
3. Upon a bill filed to set aside the sale of a lot upon the ground that
complainants were entitled to a homestead therein, and al^o on account
of the alleged irregularity of such sale, this court holds that the fact
that a person named bid off said lot at the sale, under a cerUiin execu-
tion, did not make the same complete as to him, in the absence of
payment to the sheriff; that upon failure to do so. it was the duty of
the sheriff to readvertise the property for sale; that his return of the
execution, unsatisfied, to the office of the clerk, did not relieve him
from his duty to hold the same until he had disposed of the levy by a
sale; that in such case, should the property fail \o bring upon the resale
the amount offered upon the first sale thereof, the first purchaser would
be responsible for the difference; and declines to interfere with the
decree for the defendants. Id.<, 330
HUSBAND AND WIFE— See Contracts, 7; Homestead, 1, 2; Insolv-
eItcy, 1.
1. Marria&?e is a sufficient consideration for an ante-nuptial contract
fairly and understandingly entered into. Edtcards v. Martin, 145
670 Appellate Courts of Illinols.
HUSBAND AND WIFE. Continued.
2. A wife may waive any and all right to any portion of her faus-
band^s estate by such agreement and be bound thereby, where fraud,
collusion, overreachiog or advantage taken can not be shown. Id..
145
3. In the case presented this court holds that under the agreement
in question the widow was not entitled to widow's award in her hus-
band's estate, and that the judgment in her favor can not stand. 7(2.,
145
INJUNCTfONS— See Instructions, 10.
1. The disHolution of a preliminary injunction can not affect the
ordinary progress of a suit in equity, it being collateral to the main
object of the bill. Martin v. Jamifion^ 248
2. This court declines, in view of the evidence, to interfere with a
decree perpetually enjoining a railway company from building a rail-
road in or upon a certain street in a municipality named. JS.St.
L. Union By, Co. v. City of East St. Louis, 898
INNKKEPEHS
1. No prosecution can be maintnined under the act touching frauds
upon innkeepers, for a refusal to nay for something which has not been
"obtained." Sundmacher v. Block, 553
INSOLVENCY.
1. A receiver can not, under a contract between his insolvent and
another, enter upon and use the property of the latter, and without his
consent, repudiate or change the terms thereof. St, L. dtC. S. R. Co.
2. This court holds as erroneous an order disallowing the claim
of a married woman against an insolvent firm of which her husband
was a member. Van Nostrand v. Mealand, 178
v. E. St. L. dt C. R. R. Co., 354
INSTRUCTIONS— See Malicious Prosecution, 1; Malpractice, 1;
Master and Sp:rvant, 7, 8; Railroads. 2, 14; Replevin, 2; Wit-
nesses. 6.
1. Under the pleadings and evidence in the case presented the bur-
den of proof was on the plaintiff all the way through, and<an instruc-
tion that in a certain contingency th^ burden might be shifted to the
defendant was error. Chase v. Nelson, 53
2. It is the duty of a trial court to see that all of its instructions
are correct and harmonious, and not to trust to good ones to cure bad
ones. Jd.y ' 53
3. Although instructions contain correct propositions of law, yet
where such propositions are repeated so often and in so many different
forms by tbo court as to assume the character of an argument they are
open to serious criticism. Wihnerton v. Sample, 60
4. Instructions in an action for malicious prosecution held to have
been erroneous, in that they assumed the existence of material facts
which were in dispute and were based upon hypotheses which were
unsupported by any evidence. Id., ^ 60
5. An instruction not based upon evidence adduced should not be
given. * Morehouse V. City of Dixon, 107
Index. 671
INSTRUCTIONS. Continued.
6. Nor one that it is suggestive or argumentative. Jd., 107
7. Nor one that calls the attention of the jury to a fact and gives it
undue prominence. Id.i 107
8. An instruction not based upon evidence introduced should be
refused. Steel v. Shafer^ 185
9. Where the instructions complained of are not abstracted, this
court will not consider the objections made thereto. Westphal v.
Austin, 280
10. Although an instruction may be erroneous, considered as an
abstract statement of law, yet where the court can see that the jury
were not misled, the judgment will not, on account of such error, be
reversed. If'estgafe v. Asehetthrenner, 263
11. Where a plaintiff states such a case in an instruction as requires
a verdict in his favor, and requests the court to instruct the jury that,
if they find the facts to be as stated, then they mttst return a verdict
for the plaintiff, it is error for the court to substitute the word may for
must. Piano Manfg, Co, v. Parmenter, 270
12. In the absence of evidence going to show that a witness stands
in fear of being discharged by his employer, a party to a given suit,
unless he testifies favorably to the latter, an instruction should not
be given based upon such assumption. St, L., A, db T. II. R. S.
Co. V. Walker, 388
13. In the case presented, this court holds that an instruction asked
in behalf of the defendant, was properly modified by the trial judge,
and declines, in view of the evidence, to interfere with the verdict for
the plaintiff. Ciftf qfOlney v. Riley , 401
14. While it is the duty of a court, under the statute, to mark all
instructions read to the jury, ** Given," failure to do so in case of in-
structions shown to have been given, the omission working no harm,
can not be complained of. St. L.,A. dt T, H. R. R. v. Hawkins^ 406
15. An instruction should not define particular acts in a given case
as negligence. St. L.y A. dt T. H. R. R. Co. v. Russell, 443
16. It is proper to refuse to repeat, or absolutely refuse an instruc-
tion where the same contains elements calculated to mislead or confuse
the jury. L. E. dt W. Railroad Co. v. Christison, 495
17. Supposed errors in instructions should be pointed out specific-
ally, and not referred to in general' terms. Razor v. Razor. 527
18. It is not necessary that every instruction given in a case should
be a full and complete statement of the rules and principles of law
involved. Roekford Ins. Co. v. Wright, 674
19. An instruction in an action under the Dram Shop Act, purport-
ing to state the right of recovery in the words of the statute, should
not omit the clause, '* by giving or selling (to him) intoxicating liquors.'*
Campbell v. Magruder, 604
INSUKANCE.
' 1. In an action upon an insurance policy upon a building '* while
occupied by assured as a country store and dwelling,'* which policy
(572 Appellate Courts op Illinois.
INSURANCE. Continued.
contained a clause providing for a forfeiture in case the buildinp
became vacant and unoccupied for more than ten days without notice
to the company, etc., it in held: That the forfeiture did not attach
when the building ceased to be occupied as a dwelling, but only in
case it was not occupied at all. Burlington Insurance Co. v. Brock-
tray, 43
2. In an action on a policy of insurance where the defense was that
the dues of deceased had not been received by defendant, it is held:
That the evidence conclusively showed that the deceased had paid his
dues to the proper officer of his local lodge, and that the defense was
wholly without merit. Brotherhood of Ry, Br akemenv, Knowlest 47
3. Where the agents of an insurance company issued a policy of
insurance, which was accepted by the insured, but on which the
insured failed to pay the premium when due, and the agents, under
their contract with the company, paid the premium, in an action
brought in the name of the company for the use of the agents against
the insured to recover the amount of the premium, it is held: That
the agents were subrogated to the rights of the company as to the
claim under the policy, and that no assignment was necessary to enable
them to recover the premium advanced by them. Gillett v. Ins, Co,
qf North A m erica, 284
4. While an affidavit as to the state of his health, filed by an ex-sol-
dier upon application for a pension, is admitted in an action upon a life
insurance policy issued to him, as tending to show that at about the
time he took out the same he was suffering from a disease which he
fraudulently failed to disclose to the company, and which, if he had,
would have prevented his being accepted as a rink, it is not conclusive,
and the jury must determine from all the evidence, whether the facta
set forth in such affidavit were true or that the application for insurance
correctly stated his condition. New Home Life Aas^n of III. v. Owen,
413
5. Where the agent of an insurance company fraudulently writes a
note above the signature of a person who signs what he supposes to be
an application for insurance, it is void while in the hands of said com-
pany although the person signing might be guilty of such carelessness
in not ascertaining what he was signing, as would make him liable
to a bona fide assignee before maturity. Dwelling House Ins. Co. v.
Baiiey, 488
6. It should not be assumed because of the failure of a court to dis-
cuss a certiun clause in an insurance policy, the basis of a given action,
that the same was overlooked. Mut, Accident Ass^n qf the North-
west V. Tuggle, 509
7. A death from an overdose of laudanum, taken by mistake, is
within a clause in a policy of insurance limiting its liability to '* injuries
received by or through external, violent and accidental means.** ld.<t
,509
8. An insurance agent is a proper source of information as to the
practice of his company, and it is bound by the statements of such agent,
Index. 673
INSURANCE. Continued,
whatever department of its business he has in charge. Phenix Ins. Co.
V. Hart, 517
9. The placing of a mortgage upon a tract of land other than that
upon which a house stands, will not vitiate a policy of insurance on
such house, a provision therein prohibiting incumbrances without per-
mission, although the policy refers to it as sUinding upon the aggregate
number of acres, /(?., 517
10. In an action brought to ret^over upon a life insurance policy, the
defendant contending among other things that assured died a suicide,
and that the plaintiff if entitled to recover only an amount named, this
court holds as proper the rulings of the trial court touching the defend-
ant's demurrer to tlie first replication to the defendant's third plea;
likewise as to receiving evidence under the second replication to said
plea; and declines, in view of the evidence, to interfere with the judar-
ment for the plaintiff. Conn. Miit. Life Ins. Co. v. Smithy 569
11. A building insured as, and leased for a store room, in the process
of ordinary preparation — not repair — for such purpose, is not vacant
or unoccupied. Kockfoi-d Ins. Co. v. Wright, 574
12. Where an insurance company has, by its agent, received notice
of the vacancy of a building insured therein, and said agent tissures the
policy holder that it is ** all right and we will takf aire of it,'^ it can
not, in case of loss during vacancy, insist upon the same as a breach of
the contract, and thus avoid payment. Id., 574
13. As to ordinary policies of life insurance the beneficiary has a
vested interest which is beyond the control of the party procuring the
insurance. Saueibier v. Union Centra J Life Ins. Co., 6^i0
14. An intended beneficiary need not be named in order to invest
him with such interest, unless rejjuired by the policy, and a father may
thus provide for his unborn child. 7d., 620
15. Where the description is uncertain in such case, parpl or other
extrinsic evidence is admissible to aid it. Id., 620
16. The assurance by the agent of an insurance company of the
sufficiency of the statement in and signature to, an application, to
accomplish the purpose of the applicant, wi!i bind the company. Id.,
620
17. The acceptance of an application and the making of it a part of
a policy by an insurance company will estop it to deny the interest of
children mentioned together with a wife in the application, although
the policy mentions the wife as the sole beneficiary. Id., 620
18. In the case presented, this court holds that the beneficial inter-
est was intended to be in the wife and children equally, per capita,
and that the policy should be construed in accordance with the inten-
tion of assured, /rf., 6'20
19. A court of equity will correct and reform a policy of insurance
where by fraud, accident or mistake it has been improperly drawn,
but it is not necessary to seek such relief where the doctrine of estoppel
may be applied. German Ins. Co, v. Miller, 633
Vol. XXXIX 43
674 Appellate Courts of Illinois.
INSCTRANCE. ConUmted.
20. A condition in a policy declarinsr that a mortgagre or incuii.-
brance of the property mentioned therein avoids the same, is not
■wholly broken by a mortgage of a part of the property, consisting of
separate articles, and capable of specific valuation, and in such ca«e tlie
insurance would be vitiated as to the part so mortgaged only. J(f.,
eS3
21. Answers written in an application for fire insurance, by «n
agent, without the assent of the applicant, will not bind him. Id.,
633
22. An insurance company can not insist upon non-ownership of per-
sonal property covered to avoid payment, where assured informed its
agent at the time the application was signed, that another person whs
interested in a (Certain portion of it, but was told by such agent that
the property could be written in his name. Id., 633
23. Conditions involving a forfeiture should be strictly construed .
/(?., 633
24. A company will not be permitted to avoid a policy upon ground
ot over- valuation of property covered, where its agent saw the same at
the time the application was filled out, and assented to the figures.
Jd., 633
25. A mistaken or untrue statement of a material matter will not
avoid a policy, when the company or its agent knew the real facts,
especially where an agent fills up the application, and knowing the real
facts misstiites them, either purposely or by mistake. Id,, 633
INTEREST— See Practice, 23.
1. Under an agreement between the president of several railroad
companies and a bank, an account having been opened therewith by
him in their behalf under a certain name, that said bank should be
paid interest on advances and overdrafts, an action may be brought
against all the companies to recover such interest. Chicago P. rf* *SV.
L. Ry. Co, V. A.vers, 607
2. The fact that one of such roads was being built and not in oper-
ation could not affect such right, nor could the fact that as between
themselves such companies kept separate accounts and had a system by
which balances were struck.
JUDGMENTS AND DECREES— See Homestead, 4.
JUHTES--See Practice, 35, 36, 87, 88, 39, 40.
J URISDICTION— See Appeal and {Irror. 1.
1. Where a party appears and submits himself to the jurisdiction of
the court it is of no importance whether the summons was void or not,
or whether in fact there was any process at all. Yaeger v. Ciiy of
Henry, 21
2. In the absence of a bill of exceptions an Appellate Court will
presume that every fact necessary to bring the case within the juris-
diction of the court and establish a cause of action was proven on the
Uial. Id,, 21
8. The p6wer possessed by a court of equity to dismiss a bill, on iia
Index. G75
JURISDICTION. ConliHued.
own motion, for want of juriRiliction, on the ground that the parties
have a complete remedy at hiw, must be exercised with a sound dis-cre-
tion, and where to dismiss a bill on this ground would impose great
and unnecessary luirdship upon the parties it should not be done. A Ili-
eon v. Ma ley, 85
4. In the case presented^ this court holds that the motion of appel*
lees to dismius the appeal upon the ground that a freehold is involved
can not be sustained, the question being as to the existence and priority
of mortgaged liens. Piper v. Headier, 93
5. A bill averring that a majority of the directors of a school dis>
trict, defendants, intended by fraud and indirection to pay out the
public money to that district belonging, through an incompetent person
named, who was by them employed as a teacher, to an assintant
teacher, in fact the principal of the school, and who, at the time of such
alleged employment, held no certificate as a teacher, makes a case for
equitable jurisdiction. Martin v. JamisoHy 248
6. In such case, equity will restrain the payment of any of such pub-
lic moneys for such unlawful, and for any fraudulent purpose, to any
one, by the board of directors of such district. Id., 248
7. £quity once having obtained jurisdiction, will retain it until
complete justice is done, even though adequate relief can be reached
only by personal judgment. Id., 248
8. A justice may try an action for injury to stock in any form appro-
priate to the injury done. Northrup v» Smothers, 588
JUSTICES.
1. In an action brought to recover for injury to certain hogs, this
court holds that the plaintiff excepted at the proper time to a certain
ruling of the trial court, and that in view of the evidence, the judg-
ment for the defendant can not stand. Id.f 588
LANDLORD AND TENANT— See Railroads, 4, 6. 6.
1. Lands can not be leased by parol for more than one year. Bailey
V. Ferguson, 91
2. In an action of forcible entry and detainer, this court holds, in
view of the evidence, that the judgment for the defendant can not
stand. Id,, 91
8. In distress proceedings instituted to recover certain rent claimed
under a lease providing for a crop rent in part, for certain lands, the
contention on the part of the lessee being that he had purchased such
rental before the sale of the property in question to the plaintiff, this
court holds that as between the grantor and the lessee, growing crops
might be sold by parol contract, and declines to interfere with the judg-
ment for the defendant, it appearing that the plaintiff had notice of the
sale before the completion of the contract of purchase of said lands.
Nuernberger v. Von Dtr Heidt^ 404
4. After an assignment over, the assignee of a lease will continue
liable upon any express covenants therein entered into by him in the
assignment to himself. Consolidated Coal Co* of St, Louis v. Peers,
453
676 Appellate Courts of Illinois.
ft '
LANDLORD AND TENANT. Continued.
5. Where by the terms of a lease payments are to be made id
monthly installments, an action may be brought to recover for more
than one month, and the plaintiff is not required to vait until the
expiration of any particular year or time longer than a month before
bringing suit. Id., 4^3
LIMITATIONS— -See Principal and Surety, 8.
MALICIOUS PROSECUTION—See Instructions. 4.
1. In an action for malicious prosecution, where the plaintiff had
been arrested for malicious mischief, an instruction that a person who is
in possession of property, claiming to be the owner of it, can not be
guilty of malicious mischief in destroying the same, nor of larceny in
regard to the same, is erroneous in that it ignores (he question whether
the claim of ownership is made in good faith. Wilmerton v. Sample, 60
2. Under counts charging malicious prosecution, the burden is
upon the plaintiff to prove a want of probable cause for a criminal
prosecution. Snndmacher v. Block, 553
3. A defendant should not in such case, there baying been probable
cause, suffer substantial damages, although the manner of the original
arrest was humiliating and offensire. Id., 553
MALPRACTICE.
1. In an action to recover for death alleged to have been caused by
the malpractice of the defendant, a physician, an instruction which au-
thorized a recovery by the plaintiff, in case the jury found that the
negligence of defendant contributed to the death of plaintiff's intes-
tate, was erroneous. Under the statute of this State, to justify a
recovery in such case, the negligence of defendant must have been the
direct cause of death. Chase v. Nelson, 53
MANDAMUS— See Highways, 4, 7.
1. A mandamus will not be awarded unless the petition therefor
shows a clear right to have that done which is the basis of the requests
People V. Davis, 162
MASTER AND SERVANT— See Negligence, 2.
1. An employe injured through the negligence of his master may
release him from liability therefor upon receipt of a sum agreed upon.
Chicago, Wilmington dt Vermillion Coal Co, v. Peterson, 114
2. In the case presented, this court holds, in view of the evidence,
that under the statute it was sufficient for the plaintiff to notify the
" mine car driver " that props were necessary in the room where he
was at work; that the release in question was understandingly exe-
cuted and delivered by the plaintiff to the defendant, and that in view
thereof the judgment in his favor can not stand. Id., 114
3. This court affirms a judgment for the plaintiff in an action
brought for the recovery of wages. Bippentrop v. Doctor, 120
4. In work done under the charter powers of a railroad company by
a contractor, he exercising the power given said company by its charter,
such contractor is a servant of the company so far as the public in
concerned, and it has the right to hold the company responsible for his
Index. 677
MASTER AND SERVANT. Continued. *
actfl, be being in reality tbe company that is acting. Toledo, St, L. <t
P. C. Ry. Co, V. Ccnt-vy, 351
5. This court declines, in view of the evidence, to interfere with the
judgment for the plaintiff in an action brought by a servant to recover
for personal injuries suffered through the alleged negligence of his
employer. Jd-t 851
6. In an action by an employe to recover for personal injuries suf-
fered through the alleged negligence of his employer, a mining corpora-
tion, this court holds that through the wilful neglect of its statutory
duty, a dangerous accumulation of gas took place, whereby the plaintiff
was injured, and declines to interfere with the verdict in his behalf*
Muddy Valley Mining iSt Mfg, Co. v. PhilUpB, 376
7. In an action brought to recover for personal injuries alleged to
have been suffered by a servant through the negligence of his employer*
a railroad company, this court holds, that in view of the giving of
erroneous instructions touching the question of care and negligence
upon tbe part of both parties, that the judgment for the plaintiff can
not stand. Chicago <t A, R. R. Co. v. Matthews, 541
8. In the case presented, this court holds that the jury should have
been instructed to determine, from all the facts and circumstances in
evidence, whether, under a fair and reasonable construction of all the
rules offered in evidence, the plaintiff was in the line of his duty when
injured, and if he failed to observe one of these rules, whether it was
under such circumstances as would justify him in such failure. Id.
541
9. In an action by an administrator to recover for a personal in-
jury alleged to have been occasioned by a master's negligence, this
court holds, in view of the evidence, tbat the judgment for the plaint-
iff can not stand. Litchfield Car d^ Machine Co. v. Romine, 64*2
MECHANICS' LIENS.
1. Under Sees. 1 and 2 of Chap. 82. R. S., a lien for labor or ma-
terial attaches at the time when the contract, under which the same
was furnished, was made. Freeman v. Arnold, 216
2. In a proceeding to enforce a mechanic's lien, this court construes
a writing given the defendant by the complainant setting forth the
amount for which certain labor and material would be furnished and
affirms the decree for the latter. Tohin v. CoUier^ 478
MINES— See Master and Servant, 2, 6.
MORTGAGES— See Gaming, 1.
1. The entering satisfaction of a mortgage and taking a new one,
when designed by the parlies to be a continuation of the first mortgage,
is not a satisfaction but a continuation thereof, and as to an interven-
ing judgment creditor of the mortgagor does not give him priority.
Piper V. Headlee^ 93
2. Upon a bill filed to foreclose a mortgage this court holds, in view
of the evidence, certain property in question having been misdescribed,
anew mortgage being given and the rights of minors involved, that the
678 Appellate Courts op Illinois.
MORTGAGES. Continued.
decree of the trial court can not stand, and reverses the cnnse with
directions as to the decree which should be entered herein. Id., 9S
8. A mortgaefor has a right to secure a debt not maturing in two
years ^ith a chattel mortgage £(»: the full period of two years. AuU-
man tt Co. v. Silvis, 164
4. A creditor and mortgagee may declare his whole debt doe, in
advance of the time named in the note, in case of the seizure of the
mortgaged goods by another, or in ciise of danger of losing his security,
the mortgage containing a provision to that end. Id,, 164
5. Where it is agreed between the mortgagor and mortgagee in a
chattel mortgage at the time the same is made, that the mortgagor may
sell at retail in the usual course of business and at its market value any
of the property covered, the entire proceeds of such sales to be turned
over to the mortgagee and the amount credited on the indebtedness
secured, such understanding or agreeipent renders the mortgage fraud-
ulent in law and void as to creditCMrs. Deering dt Co, v. Washburn^
434
6. The contrary seems to be the case when the agreement is made
subsequent to the giving of mortgage. Id. , 434
7. Upon bills filed to foreclose mortgages, the fact being that sub-
sequent to the giving thereof, the property in question was sold to
another, it being alleged that the grantee assumed the same, this court
holds, there being no allegation !n compiain: nt*^ bill that the grantee
ever accepted the deed from the grantor, that the recital in said deed is
not the promise of the grantee; that in the absence of an averment of
assent said recital is not sutficient, standing alone, to create a liability
B&rainst him, and that the averments of the bill are not sufficient, on a
default, to authorize a decree pro eonfesso against said grantee for a
personal liability for the debt of the grantor. Baer v. Knewitz^ 470
8. The face that a mortgagor of property located in this State,
removed to and has resided in another State for such a length of time
as will defeat an action at law upon the note given by him, will not
affect the right to proceed in chancery to foreclose. Wooley v. YarntlU
595
MUNICIPAL CORPORATJONS— See Highways, 8; Officers. 1, 2.
1. In an action brought to recover from a municipality for personal
injuries alleged to have been occasioned by its negligence, this court
holds that on account of the giving of wrongful instructions for the
defendant, and the refupal of one that was proper in behalf of the plaint-
iff, the judgment against the hitter can not stand. Morehouse v. Citff
€(f Dixon. 107
2. A municipality must use rea<«onable diligence and care to keep a
sidewalk in a reasonably safe condition. Brownlee v. Village <^
A lexis y 185
3. Notice of the unsafe condition of a sidewalk may be implied if
the defects complained of have existed for such a length of time that
the municipal authorities, or any of its officers and agents whose duty
it is to give notice thereof to the city, by the exercise of reasonable carft
might have known of such defect. Id.^ 135
I
Index. 679
MUNICIPAL CORPORATIONS. Continued.
4. It is not necessary to a recovery that a municipality should have
had notice of the condition of the particular plank which caused the
injury in question, /rf., lo5
5. Notice to a street commissioner is notice to a municipality.
Id,, 1^55
6. Where repairs are made by a municipality, to a sidewalk, it is
bound to take notice of the character of the same, and the condition of
the walk when repaired, whether safe or unsafe. Id., 135
7. Actual or constructive notice is not required in cases of defective
construction, whether the defects exist in metho I or material. Id., 135
8. In the Ciise presented, this court holds that evidence of the condi-
tion of the sidewalk in question shortly previous to the accident should
have been admitted. Also as to portions thereof distant from the point
where the injury occurred. Id,, 135
9. A city council has power to rescind a vote to pay a certain sum in
settlement of a contested claim so lonf? as such action of the council
remains executory. City of Rock Island v. McEvisy. 218
10. A municipal corporation is bound, with reference to all of its
street crossings, to use reasonable care and diligence to keep the same
in a reasonably safe condition for the use of the public. City of Van-
dalia v. Ropp, 344
11. Whether such care was exercised in a given case is a question of
fact for the jury. Jrf., 344
12. Likewise whether, under given circumstances, the plaintiff was
guilty of contributory negligence. Id., 344
13. Evidence on behalf of the plaintiff, going to show that repairs
were made to whatever caused a given injury after the occurrence
thereof, should be admitted in an action to recover therefor. Id., 344
14. A municipality may revoke an ordinance grunting a right of
way through its streets, before the same has been accepted. E, St,
Louis Ry. Co. v. City of East St, Louis, 398
15. Want of reasonable care on the part of the officers of a city as
regards the keeping in repair of streets, crossings and the like, will
warrant a recovery for personal injuries* suffered by reason thereof.
Gross negligence is not necessary to entitle a plaintiff to recover in
8uch action. City of Oiney v. Riley, 401
16. Where municipal corporations omit the duty of erecting railings
or other guards on the sides of a walk adequate for the protection from
danger, by falling therefrom, of persons using the walk with ordinary
care and caution in walking thereon, it will be sufficient to sustain a
verdict for gross negligence. City of Mt. Vernon v. Brooks, 426
17. A cripple using crutches has the same right to use a sidewalk as
a sound person, but must exercise a uigner degree of care. Id., 426
18. A city assuming to repair a »iUew«iiK must do so in such a man-
ner as to render the same rea«$onably ftite for travel. Id., 426
19. In view of feJec. 2, Chap. 146 otarr & C. III. Stats., a municipal
corporation will not be excused from repairing its sidewalks, there
boing no fun'ls in its creasury, if a tax levy is already made, against
630 ' Appellate Courts of Illinois.
X
MUNICIPAL CORPORATIONS. Continued.
which warrants may be issued in anticipation of its coiled ion by Tirtne
of that section. Id., 426
20. In cases of this sort it is for the witness to give the facts as to
the condition of a given walk and the jury to decide as to its safety.
Id,, 426
21. A city is bound to use ordinary care to keep its walks in a rea-
sonably safe condition for persons using ordinary care and with the
ordinary eti pacify to care for themselves. JW., 426
22. In certain cases theaame act may oe an offence nerai^st the State
and against a municipality, and may be punished by both. Ohio, I. <t
N. Ry. Co. V. People of k'iate of 111., 473
23. In view of the evidence, this court reverses the judgment for the
plaintiff in an action brought by one municipality against another to
recover certain money collected for taxes. Town of RushviUe v. Pres-
ident, etc., of RushviUe, 503
24. A town is so 6ir Interested in a controversy involving the can-
cellation of spurious orders outstanding against it, as to justify the
raising of money and ncurring of liability in regard thereto for the
payment of professional services rendered therein. Town of Bloom-
in gton V. Lillard, 616
NEGLIGENCE— See iNSTHucrroNS, 16; Malpractice, 1; Mastkr and
Hekvant; MuNiciPAii Coiiporations; Personal Injuries; Rail-
roads.
1. Gross negligence is the want of ordinary care; what constitutes
ordinary care varies with the circumstances of each case; one must act
under all circumstances as a reasonably prudent per^ton should act.
Chicago, Wilmington dt Vermillion Coal Co, vi Peterson, 114
2. It is against public policy to allow the provisions of a statute,
touching the care an employer must exercise with regard to the protec-
tion of his employes from personal injury, to be dispensed with by con-
tract. Id., 114
3. In an action brought to recover from a stock yard company for
injury to stock alleged to have been occasioned through its negliu'ence
in leaving the same exposed to stormy weather, this court holds, in
view of the evidence, that the plaintiff was not guilty of contributory
negligence as to the giving of directions touching the care of the stock;
that the jury were warranted in finding that said stock was injured by
being exposed to stormy weather over night; that the admission in evi-
dence of testimony as to the conversation of the plaintiff with a yard
foreman touching the care of the stock w&s proper; and declines to
interfere with the verdict for the plaintiff. St, Louis Nat. Stock
TardsY, Tihlier, 422
4. In such cases, the measure of damages is the difference in the
market value of such stock when received by the stock yard company
and when delivered to the consignor. Jrf., 422
NEGOTIABLE INSTRUMENIS-See Guaranty, 1; Principal and
SUUliTY, 1.
Index. ^ 681
NEGOTIABLE INSTRUMENTS. Continued,
1. A written instrument may be both a receipt and a contract, in
which case that portion operative as a receipt may be contradicted or
explained like any other receipt. Hossack v. Moody^ 17
2. In an action to recover from the defendant the amount of a draft
made payable to him and drawn upon the plaintiffs by their agent, the
fact beinfif that the same covered a sum lost by such agent in gaming,
this court holds that defendant was simply a stakeholder for said
agent, and that as be paid out the amount thereof as directed by such
agent, and had no notice of the plaintiffs* right, the judgment in his
favor can not be interfered with. Oberne, Hosick dt Co. v. Bunn, 122
3. In view of the evidence, this court aflfirras the judgment for the
defendant in an action brought by an insurance company to recover
upon a note alleged to have been given by him in payment of the pre-
mium on one of its policies, the defendant contending that its execu-
tion was procured through circumvention and fraud, he supposing he
wa.<« signing an application for insurance, instead of a note. Dwelling
Houise Ins. Co. v. Downy, 524
4. In an action brought to recover a balance claimed to be due upon
a promissory note, the defense being payment and the statute of limit-
ations, the judgment being for the plaintiffs, this court holds, in view of
atSdavits filed by the defendant, that a new trial should have been
granted upon the ground of newly discovered evidence. Hewitt v.
Hexter dt Co.^ 585
5. The alteration of a promissory note after delivery which in no
manner changes the right.s or interests, duties or obligations of the
parties thereto, has no effect Magers v. Dunlap, 618
6. The words, **for labor " in the note in suit, do not import that
the consideration was •* wages " due the payee ** as laborer or servant,'*
within the meaning of the exemption act. Laborer or servant as used
in the sbitute are designations of a class of persons. Id., 618
7. In an action brought upon a note given in payment for the pro-
fessional visits of a physician, the defendant should not be allowed to
state the number of visits made, in order to show a partial failure of
consideration, she having received all that was promised for the note
or gave it for what she received. Id., 618
OFFICERS — See Constables; Drainage, 1.
1. The fact that under the terms of the bond of a township super-
visor, he is required merely to perform his official duties **to the best
of his skill and ability,** will not excuse him for a misixpplication of
money. He must be held to know the law, and if in doubt, must
obtain an adjudication that will protect him. Purcell v. Town of
Bear Creek, 499
2. A board of town auditors has no power under any circumstances
to ratify an illegal appropriation of town funds, and such ratification
can not bind the town. Id.. 499
8. The payment of taxes irregularly levied amounts to a ratification,
and such irregularity can not justify the keeping or misapplying the
money so raised by a township supervisor. Id.^ 499
682 Appellate Courts of Illinois.
PARTIES.
L A party defendant can not defend a suit by showint? a want of
interest in the nominal plaintiff. Gilleit v. Ins, Co, qf North America^
284
PARTNERSHIP— See Sales, 7.
1. In an action of assumpsit brought to recnver money alleged to
have been loaned, where the defense claimed that the mat tern in con-
troversy were part of a partnership transaction, it is held: That the
issues were properly submitted to a jury, and that the evidence bustained
the verdict for the plaintiif. Blain v. Vesrosiers, 60
PAUPERS.
1. The mental capacity of a pauper and insane person after being
adjudged insane, to choose a residence, can be shown in the absence of
a readjudication. Couufy of McHtnry v. Town of Dorr^ 240
2. In an action by a county to recover from a township for the care
and support of a pauper during certain periods, this court holds that*
notwithstanding said person had been adjudged insane, he hud, when
subsequently discharged, the legal capacity to choose his residence, and
having chosen one outside the defendant, it is not liable for his keep-
ing from the time be was taken charge of by the county the second
time. Id.. 240
PAYMENT— See Contract, 1; Practice, 46.
1. Where one receives money which he is not entitled to retain,
the law will, in proper cases, raise an implied promise to repay it to
him from whom it came, but there is no such implied promise to per-
form a duty in respect to it which never rested upon him but did rest
upon the other to pay to a third party. Town of Rushville v. Presi-
dent, ete.f of Bushdlle, 503
2. In such a case a party is not compelled at his peril to determine
where the money should have gone in the first place, but when satisfit-d
it is not his be may clear himself of all responsibility by returninfir it
to him from whom he received it, and to whom alone he is accountable.
Id., 50:5
PERSONAL INJURIES— See Evidence, 10; Master and Sebvant;
Municipal Corporations; Railroads. '
1. Where a party while exercising due and ordinary care for his
personal safety is injured by the negligent acts of another, there may be
a recovery on account of such negligent acts, where both parties are
equally in the position of right, which they hold independently of each
other; the plaintiff is only bound to show that the injury was produced
by the negligence of the defendant, and that he exercised ordinary care
and diligence in endeavoring to avoid it. City of Vandalia v. Ropp,
844
2. In the case presented, this court holds that the defendant was
guilty of neifligence in not keeping in proper repair the crossing which
caused the injury in question, and declines to interfere with the verdict
for the plaintiff. Id., 344
3. In an action brought to recover from a bridge company for per-
sonal injuries alleged to have occurred through its negligence, this
Index. 683
PERSONAL INJURIES. Continued.
court holds that the evidence justified the jury in finding that the
plaintiff was seriously and permanently injured by frightened mules
running a^rainst her and pressing her against the outer railing of its
bridge; that she was in the exercise of reasonable care for her own
safety when injured; that the negligence of the defendant in failing to
provide reasonably safe and secure barriers to prevent live stock from
crossing into the foot-way, or in the absence of such barriers, failing to
establish and enforce rules for securing and controlling livestock while
being driven across the bridge, occasioned the injury to plaintiff; that
the trial court properly denied a motion on behalf of (he defendant
that plaintiff be required to submit to a bodily examination by physi-
cians; that the point advanced by the^defendant, that its negligence was
not the proximate cause of the injury, is not tenable, and declines to
interfere with tho judgment in her behalf. St* Louis Bridge Co. v.
Miller, 366
4. In an action to recover from a bridge company damages for tho
death of one of its employes, wherein the jury specially found that the
accident occurred through the negligent construction of its tracks, this
court holds, that the special findings were not warranted by the evidence,
and that the verdict for the plaintiff based thereon should not be allowed
to stand. St. Louis Bridge Co. v. Fellows, \ 456
PLEADING — See Bastardy, 5; Practicr, 41.
1. An.aIiegation that a certain person is married, is the same as one
setting forth that he is late fully married. Vet ten v. H allace, 390
2. In an action for tort where the averments of the declaration are
divisible, the plaintiff may recover upon proof of enough to make a
cause of action. L. E. db W. Railroad Co. v. Christ ison, 495
3. In such case mere surplusage will not vitiate, but where /Some
statement on the subject is necessary and it can not be wholly rejected,
a variance or failure to prove as laid is fatal. Id., 495
4. The rule that the proofs must correspond with the allegations in
a declaration applies only to such as are material in themselve'^, or being
immaterial, are yet so interwoven with what are material as to make
the latter depend upon them and thus expose both to a traverse.
Siuidmacher v. Block, 553
5. The formal ad damnum appearing at the end of a given count
applies to all the counts that precede it. Lake E. dt W. liy. Co. v.
Wills, 649
PRACTICE— See Appeal AND Error; Garnishment, 1; Instructions.
1. The construction of a writing shall be made by the court. Bailey
V. Ferguson, 91
2. Where a motion for a new trial is overruled and the defeated
party fails to except, it will be presumed that he acquiesces in the de-
cision of the court, and it can not be assigned for error. Barton v.
Harris, 106
3. A judgment of the trial court may be reversed pro forma on
account of the failure of an appellee to file briefs herein. Chi., WiJm.
<t Vermillion Coal Co, v. Peterson, 114
684 Appellate Courts of Illinois.
PRACTICE. Continued.
4. A defeated party in this court has his election either to petition
for a rehearing, or in proper case to pray for a certificate of importance,
but can not do both unless the petition for rehearins: can be disposed of
within the time limited by statute within which to pray for a certifi-
cate of importance. Oherne, Hosick dt Co, v. Bunn, 122
5. Objections to the introduction of certain evidence in a given case
can not be primarily made in this court. Town of Sheldon v. Barry,
154
6. An objection to a deposition which could be removed or obvi-
ated by a new examination, or a re-examination, of the deponent, can
not be considered after the case is called for trial. Id,^ 154
7. In an action brought to recover for the services of a stallion, this
court declines, in view of the evidence, to grant the motion of plaintiff
to strike from the record defendant's bill of exceptions, the grounds
thereof being the alleged breach of a rule of the Circuit Court, or to
interfere with the judgment for the plaintiff. Ruaaall v. Thomas,
158
8. In view of rule 7 of the Circuit Court, five days notice having
been given, the only requirement is that the opposite party must have
the proposed bill of exceptions, or a copy, four days before presentation;
and a proper construction of the rule does not require the copy or bill
of exceptions to be presented the same time that the notice is given.
Id., 158
9. Replying to an answer operates to waive the right to claim that
the matters therein contained are immaterial; to raise that point, a
plaintiff should stand by his demurrer thereto, and not take issue.
People V. Davis, 162
10. A party will not be allowed to put in evidence his own state-
ments as to an affray, or his own statements as to his mental condition
at the time thereof, made at a time subsequent to the occurrence.
Steel V. Shfl/er, 185
11. A general objection to admitting in evidence a reply to an
interrogatory in a deposition, a portion thereof only being proper evi-
dence, can not be made availing. Id., 185
12. A court is not bound to grant a motion for a new trial because
both parties may assent thereto. Citt/ of Rock Island v. MeEnii-y, 218
18. This court is not authorized to set aside a verdict where no
question of law is involved, unless the verdict is clearly against the
weight of evidence. Huhery. Schmaeht, 229
14. In the case presented, this court holds that the trial court erred
in dismissing complainant's original and amended bills for want of
equity; likewise in sustaining defendant's demurrer to said amended
bill; likewise as to the assessment of damages on the dissolution of
complainant's preliminary injunction, and reverses and remands the
same with directions. Martin v. Jamison, 248
15. Upon appeal from a decree in chancery, where there is no certifi-
cate of evidence in the record, and the decree does not recite the evi-
Index. 685
PRA.CT1CE. Continued,
dence nor tbe findings of the court below, the case must be reversed
without regard to the merits. Brechon v. Duis, *258
16. No stipulation between the parties can excuse the appellant
from a compliance with the commands of tbe statute as to the time in
which a transcript of tbe record must be filed in this court. Chicago
Sash Door and Blind Manfg. Co. v. Shaw, 260
17. Under Sec. 73, Chap. 110, R. S., regulating the time within
which a certified copy of the record must be filed in tbe Appellate
Court, the proper rule is to exclude the day on which the time com-
mences to run and include the day to which it should run. Chicago, B.
dt Q. B. R. Co, V. Evans, 261
18. Upon petition for rehearing, where the petitioner complained
that a point of law had been overlooked by the court, held, that as the'
point in question had not been presented by the instructions asked in
the court below, it was not to be considered here. West gate v. Aschen-
hrenner, 263
19. Where neither the prayer for an appeal nor the order of the
Circuit Court granting the same, names tbe court to which tbe appeal
is to betaken, but the transcript is filed in this court, the case must be
stricken from the docket. Mississippi Valley Man'f^rs Mut, Ins, Co,
V. Bermond, 267
20. Judgment reversed under rule 27, no brief having been filed by
appellee. Woodhurn v. Baum, 269
21. Where a decree of the Circuit Court was upon a former appeal
reversed for a single error and remanded, and upon a retrial the court
below corrected that error and entered a decree accordingly, upon a
second Appeal this court will not hold that the court below should have
passed upon claims that bad been adjudicated by this court upon the
former appeal. Ilenning v. Eldridge, 273
22. The time within which an appeal from a judgment of this court
to the Supreme Court may be prayed is limited to twenty days, and
that time is not extended by tbe pendency of a petition for rehearing,
but a party must elect which of these remedies be will pursue. He can
not have both unless his petition for rehearing is disposed of within the
twenty days. Goldsh'oiigh v. Gable, 278
23. Where plaintiff was entitled under the statute to interest on his
claim, but such interest was not included in the judgment, an objection
raised by the defendant, appellant, to the amount of the judgment, the
part objected to being le^^s than the interest due but not included in the
judgment, may be ignored by this court. GoxiJd v. Warns, 279
24. Where the evidence in a given case is conflicting, it is for the
jury to give the weight and credit to that introduced by each party,
which they believe it is entitled to. St, Louis Bridge Co. v. Miller,
366
25. It is for the jury to say from the evidence in a given case whether
the admitted failure of the defendant to perform his statutory duty was
wilful. Muddy Valley Mining dt Mnn^ff Co. v. Phillips. 876
26. The rulings of the trial court upon questions arising in the prog-
ress of a given trial must be preserved in a bill of exceptions duly
686 Appellate Courts of Illlvots.
PRACTICE. Continued.
authenticated; likewise the objections and exceptionfl; otherwi^^e this
court can not review such rulinf^s, nor can the party excepting thereto
have the benefit of such exceptions herein. Lusk v. Parsons^ 380
27. Elecitals of the clerk of the trial court in the transcript of the
record as to what was done in a given case, are extra-official and of no
legal effect. Zrf., 380
28. Where in a given case the evidence is sharply c -inflicting upon
material and vital questions of fact, the jury should be accurately
instructed, and the iastructions should be b^sed upon the evidence.
St. L,y A, dt T. H. R. R. Co, v. Walker, 3S8
29. Failure to advise this court by assignment of error upon the
record of the errors relied upon to reverse in a given case, will excuse
if. from a consideration thereof. E, St. L. Union Ry, Co. v. City of
East St. Louis, 398
30. Where the evidence in a given case is not preserved in the
record, this court will assume that it authorized the findings. Id,,
398
31. The specific finding of the truth of an allegation in a bill not
denied, but inferentially admitted, is not necessary to support a decree
for complainant in a given case. Id., 398
32. It is proper to enter the general verdict in a given case with-
out requiring the jury to return a special finding upon an interrogatory
which did not submit a question that was controlling. 0. <it M. Ry.
Co. V. Ramey, 409
33. Specific objections to the admission of evidence by the trial
court, general objection only thereto having been made therein, can
not be considered by this court. Wilderman v. PittSt 416
84. A witness should not be cross-examined as to matters not
touched upon in chief. City of Mt. Vernon v. Brooks, 4*26
35. A motion filed to correct the record, so as to show the method of
completing panel of grand jurors, by a defendant, previously to plead-
ing to an indictment, should be overruled, where none of the grounds
mentioned therein would have justified the court in quashing the
indictment. NeaJon v. The People, 481
36. A grand jury, when properly organized, meets and adjourns
upon its own motion, without reference to the temporary adjournment
of the court, and it may lawfully proceed in the performance of ita
duties whether the court is in session or not; but this right to remain
in session will not extend beyond the final adjournment of the court for
the term, but within such limits it will be governed by its own wishes,
subject to the control that the court at all times has over it. Id., 481
37. A mere irregularity in drawing a jury is not sufficient cause to
sustain a challenge to the array, unless the irregularity complained of
is of such a character as would probably have produced a change in the
panel, or presented a list of names to choose from, different from those
which would be produced by a compliance with the law. Id., 481
38. In the case presented, this court holds as erroneous, the over-
ruling of the challenge to the array of the pet!t jury, the county board
Index. 687
PRACTICE. Continued.
baying disregarded the provisions of Sec. 2, Chap. 78, R. S. Id,f
481
89. When a case is called for trial, and the regular panel of twenty-
four men is for any cau!*e not full, the court may order it filled from
the bystanders; but after the selection of the jury has be^un and this
number becomes reduced, so there are not twelve jurors to place in the
box, the court should order only enough to be selected from the by-
standers to keep tw€?lve men in the box and need not keep the original
panel of twenty-four full. Id., 481
40. The questions to be asked of jurors on their voir dire, and the
time permitted to be occupied in examining jurors, is largely within
the discretion of the court in a given c^isc. Id-, 481
41. A defendant seeking to raise a point touching a declaration,
which might be obviated by amendment, should be required to spe-
cifically state it and should not demur generally. Mut. Accident
Ass^n of the Northwest v. Tuggle, 509
42. This court will not reverse a case on a question which the trial
court did not decide, and which, had it been presented thereto, mlcrht
have been obviated. Id,, 509
43. Whether or not certain facts in evidence in a given case con-
stituted '*aid** in a legal sense, to a person in the doing of an alleged
tort, is for the jury to decide. Wilbur v. Turner, 526
44. A witness should not be interrogated upon cross-examination
as to a matter upon which a party in interest bases no claim, or one
which calls for an argumentative reply. Truesdale Mfg. Co, v. Uoyle,
532
45. It is proper upon calling a party to a suit as a witness to require
him to state and produce letters and telegrams in his possession
received from the party calling him, the same relatinsr to the subject in
controversy, without serving notice, or a subpoena duces tecum specify-
ing what papers are wanted. Id,, h-^2
46. Where the pleas in a given case do not deny. the plaintiff's
cause of action, but allege payment and set-off as a defense, the burden
of proof is thrown upon the defendant and gives him the right to begin
and conclude. Id., 5^2
47. A technical defense is valid if supported by the evidence.
Bockford Ins. Co, v. Wright, 574
48. Unless an. exception is preserved by embodying it in a bill of
exceptions, no ruling, however improper, that does not relate to the
pleadings, or appear on the face of the judgment, can be reviewed in
an Appellate Court. City of JacJcsonville v. Cheny, 617
49. A recital inserted by the clerk in the record immediately follow-
ing the judgment, to the effect that an exception was taken thereto,
can not be regarded as a part of the record. Id., 617
50. A defendant should not be defaulted where pleas on his behalf
are on file and undisposed of. City of Pana v. Humphreys, 641
PRINCIPAL AND SURETY.
1. The rule that the payee or indorsee of negotiable paper takes it
\
688 Appellate Courts of Illinois.
PRINCIPAL AND SURETY. Continued.
free from conflicting equities between ihe makers or oblifrees, of which
he hud no notice, applies to equities between principal and surety, as
well as other equities, and if the payee has no notice of suretyship,
there iR no equitable obligration to protect the surety restinj? on him;
he is justified in treating them both as principals. Piper v. Headlee,
2. In the case presented, this court holds that the amount in ques-
tion was wronjffully paid to the county treasurer by the township
supervisor, and that the judgment for the plaintiff in an action on the
official bond of such officer can not be interfered with. Id.^ 499
8. In an action brought to recover a sum of money paid by plaintiff
as surety upon a promissory note for defendant, this court holds that
the evidence fails to establish a new promise, the defense beini? tho
statute of limitations, and that tho judgment for the plaintiff can not
stand. Ward v. Redden^ 613
RAILROADS— See Injunctions, 1 ; Intekest, 1 ; Master andSertant, 4.
1. Where two minor brothers were both killed in the same accident,
through the alleged neglierence of defendant, a recovery in an action
brought to recover damages for the death of one constitutes no bar to
a recovery in another suit for the death of the other, although the ad-
ministrator of both estates was the same person, and the heirs for
whom he sued were the same in each case. Illinois Central Railicay
Co. V. Slater, 69
2. In an action brought against a railway company to recover dam-
ages caused by the killing of piaintiff^s intestate at a crossing of a high-
way and defendant's track, where the chief ground of complaint was
the failure of defendant to have a fldsman stationed at the crossing at
the time of the accident, it is held: That it was error for the court to
instruct the jury that if it was a reasonable precaution to be exercised
by the persons in charge of defendant's engine to keep afLtgman at the
crossing, then a failure to do so would be negligence. Unless such
precaution was necessary it could not be said to be negligence to have
omitted it. P. P. Union By, Co, v. Herman^ 287
3. The failure of a railway company to keep a flagman at a crossing
is not negligence per se, and an action can not be directly predicated on
such failure and consequent injury, but it may be based upon the fail-
ure of the company to approach the crossing with due care and caution ;
and the failure to keep a flagman at the crossing, or any other
omission, may be shown by way of specifications of the cause of such
failure. And if from all circumstances it appears that the doing of a
particular thing is necessary to the safety of persons crossing the tracks
then the company is required to do that thing, /d., 287
4. An instruction to the effect that deceased was required to exer-
cise reasonable care for his own safety at the time of receiving the
injury was improper. 7rf., 287
5. Franchises as well as lands and tenements may be demised.
A railroad company may leiise its franchises and property by authority
Index. 689
RAI LROADS. Continued.
of the Legislature. St. L. dt C, R. R. Co. v. E. St. L. dt C. R. R. Co.,
364
6. The assignee of the lessee of a railroad track, using the same
under the conditions of a lease duly entered into, is bound to pay the
rent according to the terms thereof. Id., 354
7. This court declines, in view of the evidence, to interfere with the
judgment in behalf of the plaintiff in an action brought to recover a
balance alleged to be due for the rental and use of its track and right
of way by defendant company. Jrf., 354
8. In the absence of proof to the contrary, the presumption is that
the trunk of a passenger will arrive at his destination the same time
he does, both starting upon a given trip at the same time. St. L.^A, d?
T. IL R. R. Co. V. Hawkins, 406
9. The delivery of a check by a railroad company in exchange for
one given thereto, is pt'ima facie evidence of the receipt by it of certain
hsiggsLge, and that the same was in good order. This presumption
may be overcome as to its condition, by evidence to the contrary.
Id., 406
10. To release such company from liability for damage to such bag-
gage, it must show that it was in substantially the same condition
when delivered to its owner, as when received by it. Id., 406
11. In an action to recover from a railrojid company for injury to
growing crops, alleged to have occurred throucrh its negligence, this
court holds: That the jury were justified in finding that its embank-
ment and not an extraordinary flood caused the damage in question,
and declines to interfere with the verdict for the plaintiff. 0. <^ M.
Ry. Co V. Ramey, 409
12. A railway engineer seeing domestic animals approaching a
crossing is not bound for that reason to stop or slow his train. St. L.
A. dt T. H, H. R. R. Co. v. Russell, 443
13. It is the duty of such engineer to slow or stop his train, when
such stock is on the croi^sing or in such proximity thereto that a collis-
ion may be expected. Id., 443
14. The engineer must, in such cases, use reasonable crare and dili-
gence in the management of his train to prevent injury to stock. Id.,
443
15. In an action brought for the recovery of damages for the alleeed
wrongful ejectment of plaintiff from a railroad train, this court holds,
in view of the evidence, that the trial judge was guilty of no abuse of
discretion during the trial thereof in the court below; that there was
no error in the giving or refusing of instructions; and declines to inter-
fere with the judgment for the plaintiff. L. E. dt W, Railroad Co. v.
Christison, 495
16. Whether or not the death of an animal, while being transported
by a carrier, aro^e through the negligence thereof, is a question of fact
for the jury. Illinois C. R. R. Co. v. Light, 5S0
17. It is ordinarily negligpnce to go upon a railroad track without
Vol. XXXIX 41
690 Appellate Coukts of Illinois,
RAILROADS. Continued.
using the senses to ascertain as to the proximity of trains. Wahash
R. E. Co, V, Speer, 599
18. A railroad company in liable for personal injuries arising from
the frightening of a team standing a safe distance from a crossing,
through the unnecessary sounding of the whistle of one of its engines.
Id,, 599
19. It is as much the duty of a hand car crew^ upon approaching,
with their car, a street crossing, the greater part of which is occupied
by a standing train, to use such care as win prevent injury to them-
selves, as others approaching the.same, having equal rights. L, E. d^
W. Ry. Co. V. Wills, 649
REAL PROPERTY.
1. Upon a bill in equity, filed by a defeated party (the defendant)
in an ejectment suit to establish a lien and to recover for betterments
on lots, which at the time most of the betterments were placed thereon
were owned by a married woman who owned the reversionary interest
in fee and whose title was of record and open to inspection, held, it
being admitted that the case did not fall within the provisions of the
ejectment law providing for the appointment of commissioners, etc,
that the evidence failed to charge the defendants either with construct-
ive fraud or with an estoppel, and that the biJl could not be maintained.
Mettler v. Craft, 193
2. The statute of this State in regard to allowance for betterments
to a defeated party in ejectment was intended to cover the entire
ground, especially in cases where the defeated defendant takes the
initiative and the plaintiff makes no claim for rents and profits. Id.,
193
8. Upon the case presented it is held: That the appellant was a
tenant in possession per autre tie, and that he was liable to the owner
of the inheritance for waste permitted. McDole v. McDole, 274
4. Upon the question of the value of wood cut and sold from the
premises, testimony of witnesses stating the amount of wood actually
cut and sold outweighs that of witnesses estimating the value of the
wood per acre. Id,, 274
5. In an action brought to recover for injury to farm land through
the building of an embankment, whereby its drainage was obstructed,
this court declines, in view of the evidence, to interfere with the ver-
dict for the plaintiff. Anderson v. Thiele, 476
RECEl PTS— See Negotiable Instruments, 1.
RECEIVERS— See Insolvency, 2.
REPLEVIN.
1. In an action of replevin, this court holds that the jury were jus-
tified in finding that defendant had actual notice of the rights of plaint-
iff to the property in question before the levy was made; that notice to
the officer holding the writs was notice to the attaching creditors; and
declines to interfere with the judgment for the plaintiff. O'Leary v.
Bradford, 182
Index. 691
REPLEVIN. Continued.
2. In an action of replevin, this court bold, the jury having been
correctly instructed, and the evidence supporting the verdict, that the
judgment for the plaintiff must be aiiirmed. Wesigate v. Aschen-
hrenner, ' 263
3. No error of law appearing, and the evidence supporting the ver-
dict, the judgment for the defendant must be affirmed. Westgate v.
Aachtnhrennert 266
4. Under Sec. 123, Chap. 8, B. S., an action of replevin survives,
and such survivorship applies in case of the death of the defendant as
well as that of the plaintiff. MeCrory v. Hamilton^ 490
5. A judgment in such case, not that the property be returned to
the defendant, but that he have a writ of retomo habendo, while
informal, is not so defective as to be regarded as a nullity. Id., 490
6. In an action of debt upon a replevin bond, this court holds, in
view of the evidence, that the judgment for the plaintiff can not stand.
Id., 490
SALES— See Evidence. 2.
1. A purchaser of personal property, in order to acquire title thereto
against creditors and banajide purchasers of the vendor without notice,
must reduce the property purchased to possession before the rights of
such creditors or purchasers attach thereto. O'Leary v. Bradford,
182
2. The rule that a vendor can not rescind a sale on the ground of
fraud without placing the vendee in statu quo is subject to exception^
where the vendee has by his own acts put it out of the power of the
vendor to place him in statu quo. Wilson v. Challis, 227
3. In an action on a contract for the sale of binding twine, which
contained a guaranty of the quality of the twine sold, where the vendor
claimed that the twine was not up to the guaranty, it is held: That
the defendants had received all the allowance in the verdict and by
remittitur, to which they were entitled under the evidence. Luthy v.
Waterbunj, 317
4. Under a clause in the contract which provided that in case of
sales to others during the season at a less price than that fixed in the
contract with defendants, the defendants should be entitled to a corre-
sponding reduction, it is held That the evidence failed to show that
sales had been made at a less price as claimed. Id., 317
5. A clause in the contract provided that should the appellees, or
another company named, sell twine during the season at a less price
than that named in the contract, the appellees would make a corre-
sponding reduction, held: That this clause did not apply to a sale
already made, and second, that it had no reference to more favorable
terms given to appellants by the other company named, by way of
receiving back unsold twine at the end of the season. Id., 317
6. The mere fact that witnesses may use the ^erms .sell or sale, or
that the parties to a given transaction used such terms, does not oper-
ate to make the same a sale, if upon consideration thereof it appears
there was none. McCrory v. Hamilton, 490
692 Appellate Courts of Illinois,
SALES. Continued.
7. In an action brought to recover for articles sold, this court holds,
in view of the evidence, that a person named was not liable as a part- ,
ner of the purchaser, and that the judgment for the plaintiff can not
stand. HeasY. Reiser, 4S3
8. In an action brousrht to recover for lumber sold and delivered,
the contention being as to whether the defendant or a building con-
tractor was liable therefor, this court declines, in view of the evidence,
to interfere with the judgment for the defendant. Johns v. McQuigg^
609
SCHOOLS — ^See Jurisdiction, 5.
1. Neither party to a contract entered into between a school board
and teacher, whereby the latter is employed to teach a certain school
upon a salary named, is discharged from observing the conditions hereof
by reason of the destruction of the school house, in the absence of any
provision therein touching such possible occurrence. Com v. Board of
Education^ 446
2. The inability of the school board to procure another building for
school purposes would not in such case, in the absence of such provision,
absolve it from a liability for salary. Id,, 446
SET-OFF— See Practice, 46.
1. The claim of a plaintiff in a given case for unliquidated damages
arising out of a tort, totally disconnected from -the defendant's claim
against the plaintiff, upon a note on which suit had been previously
brought, is not such a claim or demand as should have bf^en brought
forward and adjusted in the suit upon said note. Caldwell v. EtanB,
613
SPECIAL FINDINGS— See Personal Injuries, 4.
SPECIFIC PERFORMANCE.
1. Chancery will not entertain a bill to specifically enforce contracts
relating to personal property, nor contracts which by their terms call
for a succession of acts whose performance can not be consummated by
one transaction, and which require protracted supervision and direc-
tion. Grape Creek Coal Co, v. Spellman, 630
STATUTES.
1. An act in derogation of common right must be strictly construed
so far as it places restraint upon any useful and lawful calling. Cat^
herry v. People, 606^
STOCKS— See Jurisdiction, 8; Railroads. 11, 12, 13.
SUBROGATION— See Insurance, 3.
TAXES — See Municipal Corporations, 22; Officers, 3.
TRESPASS.
1. In the absence of a defense, evidence in a suit of trespass qtiare
cjausum fregit, that the locus in quo has been in the undisputed
possession of the plaintiff for over fifty years, and that defendant has
encroached thereon by building a fence, doing no oth,er damage, will
Ij^dex. 693
TRESPASS. Continued.
warrant a recovery of at least nominal damages. Johnson v. Stinger.
180
2. In the case presented^ this court holds that the defendant has
failed to show a good defense, and that the judgment in his favor can
cot stand. Id,, ISO
3. An arrest by a private person without process is a trespass, if ^o
criminal offense was committed or attempted in his presence, whether
he had probable cause or not, to believe the person arrested guilty, and
counts in trespass in the declaration in an action based thereon, need
not cootain the averment that the alleged arrest was *' without any
reasonable or probable cause."* Sundmaeher t. Block, 553
4. An action of trespass may be supported against a person, not being
an infant or feme covert, who afterward assents to a trespass commit-
ted for his benefit. Id., 553
5. Also against all who aided or abetted in committing the same;
Id., btS
TRUST DEEDS— See Gaming. 1.
WILLS.
1. The intention of a testator, if not incon«)istent with the rules
of law, must govern in the construction of a given will. Sheets v.
Wetsel, 600
2. It is the general rule that when the use of money is given to one
for life, with remainder over to another, the former bas no right to the
possession of the money so bequeathed, but it should be put at interest,
the interest paid to the tenant for life and the principal retained for
the remainder- man. Id,, 600
3. In the case presented, this court construes several clauses of the
will involved, affirming in part and reversing in part the decree of the
trial court therein, with directions to amend the same. Id., 600
WITNESSES— See Practice, 44, 45.
1. To entitle a witness to the privilege of not answering a question
as tending to criminate him, the court must see from the nature and
circumstances of the evidence, which the witness is asked to give, that
there is reason to apprehend injury if he is compelled to answer, and
where that is made to appear, much latitude will be allowed him in
determining the effect of any particular question. The danger to be
apprehended must be real and not imaginary. Minter v. The People,
438
2. The law will not permit a man to keep the names of tba^^e who
violate the law, and their offenses, secret, because of a fear that they
might give evidence in their turn against him. Id., 438
3. Testimony going to show that the witness giving it, had seen a
certain person play cards for money, does not furnish or tend to
furnish evidence against such witness of a criminating character, nor
will the fact that the witness was engaged in the game excuse him
from answering. Id., 438
4. The leading facts of a case should be presented hypothcticiilly,
894 Appellate Coubts of Illinois.
«
WITNESSES. Continued.
before adking an expert witness how mnch loss of time would be
caused by mechanics changing from one kind of work to another. Id.t
532
5. The credit of a witness may be impeached by proof that he has
niade statements out of court contrary to what he testifies at a given
trial. Kerr v. Hodge, 546
6. Such proof should be permitted to go to the jury, and they
should be tol(l to consider it in determining what credit and force shall
be given a witne.<^8 under such circumstances; but they should not be
instructed that they can rightfully disregard the entii^ testimony of a
witness for that reason, unless corroborated. Id., 546
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